" 


NULLIFICATION,    SECESSION 
WEBSTER'S  ARGUMENT 


AND 


THE  KENTUCKY  AND  VIRGINIA  RESOLUTIONS 

CONSIDERED    IN   REFERENCE   TO   THE 
CONSTITUTION  AND  HISTORICALLY 


CALEB  WILLIAM    LORING 


G.  P.  PUTNAM'S  SONS 

NEW   YORK  LONDON 

27   WBST  TWENTY-THIRD   STREET  2*4    BEDFORD   STREET,   STRAND 

(Liu  Imichcrbochrr   jptcss 
1893 


COPYRIGHT,  1893 

BY 
CALEB  WILLIAM  LORING 


Electrotyped,  Printed,  and  Bound  by 

Ubelfcnlcfeerbocfcer  press,  Hew  Borft 
G.  P.  PUTNAM'S  SONS 


PREFACE. 

I  WAS  much  shocked  a  few  years  ago,  in  read- 
ing a  Life  of  Webster,  by  the  statement  of  its 
able  and  distinguished  author  that  really  Hayne 
had  the  right  of  the  argument  in  the  renowned 
debate  on  nullification.  In  reply  I  prepared  a 
statement  of  Webster's  argument.  Besides 
what  Webster  had  so  ably  said,  I  found  in  the 
Constitution  itself  other  proofs  of  the  nation- 
ality of  our  government,  of  the  intent  of  those 
who  made  it  to  establish  a  nation,  of  their  full 
belief  that  they  had  done  so,  and  that,  histori- 
cally, there  was  no  contention  as  to  this. 

The  vital  question  is  whether  a  national 
union  was  established  by  the  States,  or  a  con- 
federacy of  independent  nations  formed  with 
the  right  of  each  to  decide  upon  the  validity  of 
the  acts  of  the  General  Government  and  leave 
it  at  its  pleasure. 

The  superiority  in  men  and  wealth  that  gave 
the  North  the  victory  did  not  decide  the  right 
or  wrong  of  secession  :  it  may  have  shown  its 
impracticability ;  but  if  the  right  ever  existed 
it  remains  to-day. 

There  are  many  authors  who  have  at  great 
length  discussed  this  matter  on  the  side  of  the 


iv  PREFACE. 

South,  but  the  case  of  the  North,  it  seems  to 
me,  has  not  been  fully  set  forth.  The  idea 
appears  to  be  creeping  into  history,  a  recent  fad 
of  some  Northern  writers  and  commentators, 
that  the  nationality  of  our  government  was  a 
question  from  its  inception,  and  that  the 
United  States  Judiciary  and  Congress  by  as- 
sumptions have  largely  extended  its  powers. 

The  nation,  as  Pallas  Athene  full  grown  and 
armed  from  the  brain  of  Zeus,  sprang  to 
life  from  the  Constitution  with  the  sovereign 
authority  necessary  for  its  existence  and  the 
power  to  enforce  its  rule.  In  the  beginning 
there  was  no  debate,  no  question  of  its  nation- 
ality. The  early  commentators  on  the  Consti- 
tution (and  Story  wrote  three  volumes  upon 
that  matter)  did  not  even  mention  that  there 
was  a  doubt  of  it. 

To  those  who  so  often  quote  the  Kentucky 
resolutions,  it  will  perhaps  be  a  matter  of  sur- 
prise to  learn  that  their  purport  and  existence 
were  forgotten  from  the  time  they  were  pro- 
mulgated until  South  Carolina's  threat  in  1830 
of  nullification. 

That  Virginian  of  Virginians,  Patrick  Henry, 
who  so  strenuously  opposed  his  State's  adop- 
tion of  the  Constitution,  struck  the  keynote, 
when  he  objected  that  it  was  "  We,  the  people, 
and  not  "We  the  States,"  that  made  the  govern- 
ment. Later,  when  convinced  of  the  wisdom 
of  the  adoption,  and  Virginia  had  shown  by  its 
resolutions  its  objections  to  the  Alien  and  Sedi- 


PREFACE.  V 

tion  laws,  and  discontent  at  the  rule  of  John 
Adams  and  the  Federalists,  he  no  less  forcibly 
declared  that  Virginia  owed  an  obedience  to 
the  laws  of  the  United  States. 

It  will  be  new  to  many  that  the  Virginia  reso- 
lutions do  not  in  the  least  countenance  the 
doctrine  of  secession  and  nullification  :  that  the 
resolutions  and  explanations  of  them  by  the 
Virginia  Legislature  testify  to  an  attachment 
and  love  of  the  Union,  and  a  professed  intent 
to  strengthen  and  perpetuate  it,  and  are,  as 
they  declare,  only  a  protest  against  the  assump- 
tion by  the  government  of  undelegated  power. 

In  the  belief  that  the  right  and  might  both 
prevailed  in  our  civil  war,  and  in  full  trust  in 
that  faith,  these  remarks  are  submitted  to  the 
people  of  our  whole  country. 

CALEB  WILLIAM  LORING. 


CONTENTS. 


CHAPTER   I. 

PAGB 

WEBSTER  AND  HAYNE.  i 

Insistance  of  the  South  on  the  right  of  secession — 
Belief  in  this  of  English  and  of  some  Northern 
writers — The  doctrine  of  Webster's  speech  on  nulli- 
fication approved  throughout  the  country  except  in 
South  Carolina — Hayne's  doctrine  and  speech — Web- 
ster'sreply  to  Hayne's  attack  on  the  Eastern  States — 
Statement  of  Webster's  argument  in  reply  to  Hayne 
and  Calhoun — Jackson's  vigorous  opposition  to 
nullification  ;  and  his  proclamation. 

CHAPTER    II. 

THE   NATIONALITY  OF   THE  CONSTITUTION,      24 

The  question  is  whether  a  national  government  or  a 
confederacy  of  nations  was  made  by  the  adoption  of 
the  Constitution — The  doctrine  of  nullification  and 
secession  considered — The  State  governments  and 
the  National  government  have  limited  powers — The 
foundation  of  our  government  was  necessarily  a 
compact — The  compact  was  for  a  national  govern- 
ment— The  failure  of  the  government  of  the  Con- 
federacy of  the  revolution — The  Constitution  had  the 
sanction  of  the  Confederacy,  of  the  State  govern- 
ment and  of  the  people — Preamble  of  Constitution 
declares  its  perpetuity — Supremacy  of  the  Constitu- 
tion over  State  judiciaries  and  laws — All  really  sover- 


Vlil  CONTENTS. 

CHAPTER  II— CONTINUED. 

PAGE 

eign  powers  given  to  United  States — Restriction  of 
State  powers — Towers  of  States  only  local — People  of 
States  or  parts  of  States  making  war  against  the 
United  States  guilty  of  treason — Originally  States, 
like  counties,  were  suable  by  the  Constitution — By 
amendments  to  the  Constitution  the  United  States 
can  assume  any  power  over  the  States — Other  pro- 
visions giving  the  general  government  great  power 
over  States — Restriction  of  States  to  prevent  their 
making  resistance — Constitution  established  a  govern- 
ment over  individuals  not  States — Authority  of  the 
judiciary. 

CHAPTER  III. 

THE  CONSTITUTIONAL  CONVENTION  INTENDED 
NATIONALITY.  .         .         .         .         .51 

Convention  called  to  amend  the  articles  of  Confeder- 
acy—  First  resolution  passed  :  the  government  should 
be  supreme  and  national — The  national  plan  offered 
by  the  Virginia  delegation  preferred  and  considered 
The  New  Jersey  plan  of  a  confederacy  of  the  States 
with  coercive  power  to  compel  obedience — Hamil- 
ton's plan — The  Virginia  plan  again  adopted.  The 
United  States  adopted  as  the  title — Resolutions 
passed  that  there  should  be  two  branches  of  the  legis- 
lature, the  first  to  be  chosen  by  the  people — Long 
controversy  as  to  representation  in  Senate,  settled 
by  an  equal  representation  of  the  States,  the  vote  to 
be  per  capita — This  compromise  of  representation 
in  Senate  does  not  affect  the  supremacy  of  the 
granted  powers — Resolution  of  Elbridge  Gerry  re- 
ferring the  plan  of  a  national  government  to  the 
committee  of  detail  unanimously  passed — Govern- 
ment called  national  in  many  of  the  referred  votes — 
Committee  of  detail  report  votes  passed  ;  the  pre- 
amble declaring  the  government  to  be  for  posterity — 
Article  against  treason  again  debated  and  passed 


CONTENTS.  IX 

CHAPTER   III— CONTINUED. 

PAGE 

unanimously — Constitution  committed  to  committee 
of  style  and  arrangement — New  draft  considered  at 
length,  adopted,  and  signed  by  delegates — Diversity 
of  opinion  as  to  durability,  no  suggestion  that  a  State 
had  a  right  to  leave  the  Union — Yates  and  Lansing 
left  convention  because  the  Constitution  made  a 
national  government — Satisfaction  with  it  of  South- 
ern States — Washington's  service — Franklin's  happy 
speech  at  close — George  Mason  did  not  sign, 
though  efficient  in  making  it — Constitution  submitted 
by  State  legislatures  in  each  State  to  a  convention 
of  the  people — Its  acceptance  considered  in  long 
sessions  of  the  conventions  held  in  the  several  States 
— Everywhere  announced  as  a  national  government — 
Ratified  as  national  in  Massachusetts  and  Virginia — 
Unanimous  opinion  of  convention  of  New  York  of 
its  perpetuity — Amendments  of  Constitution,  passed 
to  quiet  apprehension  as  to  its  excessive  powers — 
Early  laws  show  a  liberal  construction  of  the  powers 
of  the  government — The  right  of  individuals  to  sue 
States  taken  away,  but  jurisdiction  over  States  and 
disputes  between  States  retained — Insurrection  in 
Pennsylvania  against  excise  law  suppressed — Opin- 
ion of  Washington  as  to  power  of  government — 
Alien  and  sedition  laws  passed. 

CHAPTER  IV. 

KENTUCKY  AND  VIRGINIA  RESOLUTIONS      .       88 

Jefferson  reputed  author  of  Kentucky  resolutions — 
Slight  notice  taken  of  Kentucky  resolutions — Res- 
olutions are  merely  the  opinion  of  the  legislature 
passing  them — Kentucky  resolutions  declare  the 
States  being  united  by  compact,  each  has  a  right  to 
pass  on  the  validity  of  the  laws  and  doings  of  gov- 
ernment made  by  the  compact — The  compact  of  the 
Constitution  is  to  leave  to  the  United  States  judiciary 
the  determination  of  the  validity  of  all  laws  and  cases. 


CONTENTS. 

CHAPTER  IV— CONTINUED. 

Right  of  contracting  powers  to  compel  performance 
by  a  party  refusing  to  keep  its  contract —  Further  ab- 
surdity of  Kentucky  resolutions  in  denying  the  validity 
of  all  punitive  laws  passed  by  Congress  except  for 
offences  mentioned  in  the  Constitution — Virginia's 
resolutions  fundamentally  different — Madison  never 
sanctioned  nullification — Resolutions  of  Virginia — 
They  are  :  in  case  of  usurpation  it  is  the  duty  of  the 
States,  not  a  State,  to  interpose  to  redress  the  evil 
— This  not  an  assertion  that  States  could  refuse 
obedience  to  the  laws  —  Opposing  declarations  of 
other  States — Kentucky  replied  to  the  resolutions  of 
other  States  by  protest,  not  by  nullification — Virginia's 
explanation  to  counter-resolutions  of  the  other  States 
drawn  by  Madison  —  The  reply  conciliatory — It 
affirms  the  Constitution  is  the  compact  to  which  the 
States  are  a  party — It  defines  States  as  meaning 
people  of  the  States — The  right  to  resist  in  the  last 
resort  is  a  claim  of  right  of  revolution — The  right  to 
interpose  exists  only  in  usurpation  of  powers  and  for 
the  sole  purpose  of  arresting  tlje  usurpation — Ad- 
mitted the  judiciary  is  to  decide  on  all  questions  sub- 
mitted to  it — The  assumption  of  undelegated  powers 
stated  to  be  dangerous  to  liberty — Alien  and  sedition 
laws  declared  to  be  unconstitutional — These  reso- 
lutions are  merely  opinions — No  objection  to  sending 
them  to  other  States — May  possibly  influence  opinion 
even  of  the  judiciary — The  request  of  Virginia  to 
other  States  to  join  her  in  constitutional  ways  to 
maintain  their  rights  not  objectionable — Resolutions 
asserted  to  be  strongest  proof  of  the  attachment  of 
Virginia  to  the  Constitution  and  Union — The  reso- 
lutions, perhaps  partisan,  but  do  not  assert  the 
doctrine  of  nullification — Resolutions  before  the  ex- 
planation alarmed  Washington  and  Henry  who  vig- 
orously attacked  them — Henry's  declaration  that 
Virginia  owed  the  same  obedience  to  United  States 
as  one  of  her  counties  did  to  her. 


CONTENTS.  XI 

CHAPTER  V. 

PAGE 

SUPREMACY  OF  CONSTITUTION   MAINTAINED,       1 16 

Doctrines  of  Jefferson's  inaugural — Serious  conflict 
in  the  Gideon  Olmstead  case — Jefferson  signed  an 
act  authorizing  the  use  of  the  army  and  navy  against 
a  State — The  United  States  jurisdiction  enforced 
against  Pennsylvania — Unanimous  objection  of  legis- 
lature of  Virginia  to  taking  from  the  Supreme  Court 
its  exclusive  jurisdiction  in  cases  where  States  were 
concerned — Purchase  of  Louisiana  by  Jefferson — 
Josiah  Quincy's  speech  a  threat  of  rebellion,  not  a 
claim  of  right  of  secession — Sayings  and  acts  of 
Jefferson  opposed  to  nullification  and  secession — 
Jefferson's  direction  that  the  Federalist  should  be  the 
permanent  text-book  of  the  University  of  Virginia — 
The  submission  of  New  England  to  the  embargo — 
The  Hartford  convention  passed  no  resolves  asserting 
State  rights  ;  it  proposed  amendments  to  the  Consti- 
tution— Supremacy  of  the  government  always  main- 
tained. 

CHAPTER  VI. 

CALHOUN,  JACKSON,  AND  NATIONAL  GOVERN- 
MENT  134 

Calhoun  in  the  beginning  a  leader  and  advocate  of 
national  views  in  the  House  of  Representatives — Sec- 
tional division  of  States  on  the  question  of  slavery — 
Missouri  compromise — Calhoun's  change  of  opinion 
— The  nullification  of  South  Carolina — Calhoun's 
"  inexorable  logic  "  considered — The  doctrine  of 
nullification  not  asserted  from  time  of  the  Kentucky 
resolves  until  revived  by  South  Carolina — Jackson's 
proclamation — His  firmness — His  experience  in  po- 
litical matters  as  lawyer,  legislator,  and  judge — Con- 
gress passed  a  force  bill  to  collect  duties — Act  reducing 
duties  also  passed — Strong  resolutions  of  legislatures 


Xii  CONTENTS. 

CHAPTER  VI— CONTINUED. 

of  the  Southern  States  against  nullification — Su- 
premacy of  the  government  maintained  by  judges 
appointed  by  all  the  political  parties  in  every  case 
and  over  all  the  States — Judgments  of  State  courts 
constantly  reversed  until  the  time  of  the  civil  war 
— It  is  Congress,  not  the  court,  that  makes  the  laws — 
Judge  Story — History  after  the  threatened  nullifica- 
tion of  South  Carolina — Legislation  and  decision  of 
Supreme  Court  extending  slavery  —  The  South's 
preparation  for  disruption  of  the  Union — Virginia 
opposed  the  government  without  passing  an  ordinance 
of  secession — Military  academies  of  Southern  States 
— The  government  stronger  than  Hamilton  thought 
— The  exceeding  excellence  of  the  Constitution — 
New  vigor  of  South  Carolina  as  a  free  State. 


NULLIFICATION,   SECESSION, 
WEBSTER. 


CHAPTER  I. 

WEBSTER  AND  HAYNE. 

IN  the  renewed  friendly  relations  at  the  din- 
ner-table and  in  the  lecture-room,  the  North  of 
late  has  had  the  pleasure  of  listening  to  the 
speeches  and  discourses  of  Southern  orators, 
soldiers,  and  politicians,  who,  while  asserting 
their  loyalty  to  the  Union,  claim  that  that 
Union  was  a  compact  between  independent 
sovereign  States,  from  which  each  of  these  in- 
dependent sovereign  States  had  an  undoubted 
right  to  secede  ;  our  Southern  brethren,  beaten 
in  the  trial  of  arms,  persistently  insist  that  they 
fought  for  the  right. 

Besides  Jefferson  Davis'  History  of  the  Con- 
federacy, as  bitter  to  some  of  its  generals  as  to 
the  North,  the  Vice-President  of  that  govern- 
ment, of  high  repute  for  ability  and  reasoning 
powers,  Alexander  H.  Stephens,  published  two 
ponderous  volumes  to  prove  not  only  that  the 


2      NULLIFICATION,    SECESSION,    WEBSTER. 

South  could  secede,  but  that  it  was  obligatory, 
if  it  wished  to  retain  its  equality  and  freedom, 
alleging  as  the  principal  reason  the  wrongful 
infringement  of  the  right  of  the  South  to  take 
its  "  peculiar  property,"  slaves,  into  all  the  ter- 
ritories of  the  Union,  the  common  property  of 
all  the  States.  Recently  was  published  Semmes' 
Career  of  the  Sumter  and  Alabama,  abusive  of 
the  Yankee  and  of  Northern  friends  like  Bu- 
chanan, insisting, on  the  justice  and  necessity 
of  secession,  and  asserting  the  tyranny  and  mean 
oppression  of  the  North.  We  have  had  also  a 
republication  of  Governor  Tazewell''s  Review  of 
President  Jackson  s  Proclamation  against  Nul- 
lification;  and  generally  the  dedication  of 
statues  and  decorating  of  the  graves  of  the 
soldiers  of  the  Confederacy  have  been  taken 
as  occasions  to  show  the  justice  of  the  lost 
cause. 

It  is  to  be  hoped  that  few  agree  with  General 
Early's  declamation  at  Winchester  as  to  those 
of  the  South  who  changed  their  opinion  as  to 
secession  :  "  The  Confederate  who  has  deserted 
since  the  war  is  infinitely  worse  than  the  one 
who  deserted  during  the  war." 

The  same  opinion  as  to  the  right  of  secession 
has  been  very  generally  held  by  British  poli- 
ticians ;  and  that  opinion  to  a  great  extent  pre- 
vailed, and  to-day  prevails,  in  the  English  army 
and  navy.  Mr.  John  Morley,  in  his  life  of 
Burke,  in  reference  to  Burke's  speeches  de- 
nouncing the  conduct  of  Great  Britain  towards 


WEBSTER  AND   HAYNE.  3 

us  as  colonies,  says  that  "  the  current  of  opinion 
was  then  precisely  similar  in  England  in  the 
struggle  to  which  the  United  States  owed  its 
existence,  as  in  the  great  civil  war  between  the 
Northern  and  Southern  States  of  the  American 
Union  "  ;  "  people  in  England  convinced  them- 
selves, some  after  careful  examination,  others 
on  hearsay,  that  the  South  had  a  right  to 
secede." 

Lord  Coleridge,  who  served  'as  one  of  the 
British  commissioners  in  the  Geneva  arbitra- 
tion, in  an  address  recently  delivered  at  Exeter 
on  Sir  Stafford  Northcote,  says  : 

"  I  have  myself  seen  that  most  distinguished  man,  Charles 
Francis  Adams,  subjected  in  society  to  treatment  which,  if 
he  had  resented  it,  might  have  seriously  imperilled  the 
relations  of  the  two  countries.  .  .  .  But  in  this  critical 
state  of  things,  in  and  out  of  Parliament,  Mr.  Disraeli  and  Sir 
Stafford  Northcote  on  one  side,  and  the  Duke  of  Argyll  and 
Sir  George  Cornewall  Lewis  on  the  other,  mainly  contributed 
to  keep  this  country  neutral,  and  to  save  us  from  the  serious 
mistake  of  taking  part  with  the  South." 

Even  Mr.  Bryce,  a  most  learned  author,  whose 
opinion  in  this  matter  has  great  weight,  inti- 
mates that  the  seceding  States  legally  may  have 
been  right.1 

1  Bryce's  American  Commonwealth ,  vol.  i.,  pages  409  and 
seq.  Yet  Mr.  Bryce's  whole  work  is  in  accordance  with  the 
theory  he  asserts  at  the  beginning  of  chapter  iv.,  vol.  I, 
page  29  :"  The  acceptance  of  the  Constitution  of  1789  made 
the  American  people  a  nation.  It  turned  what  had  been 
a  league  of  States  into  a  Federal  State  by  giving  it  a  National 
Government  with  a  direct  authority  over  all  citizens." 


4     NULLIFICATION,   SECESSION,   WEBSTER. 

Lord  Wolsejey,  in  his  article  in  Macmillaris 
Magazine  on  the  life  of  Lee,  extolling  him  as 
the  greatest  general  of  his  age  and  the  most 
perfect  man,1  informs  us  that  each  State  pos- 
sessed the  right  both  historically  and  legally 
under  the  Constitution  to  leave  the  Union  at 
its  will.  Apparently  he  did  not  know  that  Jan- 
uary 23,  1861,  Lee  wrote  to  his  son:  "Seces- 
sion is  nothing  but  revolution."  "  It "  (the 
Constitution)  "  is  intended  for  perpetual  union, 
so  expressed  in  the  preamble,  and  for  the  estab- 
lishment of  a  government  not  a  compact,  and 
which  can  only  be  dissolved  by  revolution  or  the 
assent  of  all  the  people  in  convention  assembled. 
It  is  idle  to  talk  of  secession." 

Possibly  in  time  the  North  may  be  of  the 
same  opinion  as  to  Lee's  transcendent  ability 
as  a  general.  No  one  doubts  now  his  great 
soldierly  attainments  and  the  worth  of  his  pri- 
vate character,  but  for  the  sake  of  the  existence 
of  our  nation,  may  it  never  believe  he  fought 
for  the  right. 

Very  generally  and  very  fortunately  for  the 
country  our  Southern  fellow-citizens,  except 
their  historians,  some  of  their  politicians,  and  a 
few  whom  they  call  unreconstructed  rebels,  con- 
cede that  the  right  of  secession  has  been  put  to 
the  arbitrament  of  war  and  decided  against  the 
South  forever.  Now  they  tell  us  that  none  are 
more  loyal  and  will  march  more  willingly  under 
the  Stars  and  Stripes  than  those  who  fought  so 

1  General  Long's  Memoirs  of  Lee,  page  88. 


WEBSTER  AND  HAYNE.  5 

bravely  to  the  bitter  end  under  the  flag  of  the 
Confederacy.  Even  Jefferson  Davis,  in  the 
conclusion  of  his  history,  concedes  that  the 
result  of  the  war  has  shown  that  secession  is 
impracticable.  It  is  difficult,  however,  to  under- 
stand how  might  has  made  right,  and  the  con- 
quest of  the  richer  and  more  populous  North 
over  the  weaker  South  has  settled  forever  the 
right  or  wrong  of  the  matter.  The  North  does 
not  believe  in  the  sneering  maxim  of  Frederick 
the  Great,  that  the  Almighty  is  on  the  side  of 
the  heavier  battalions. 

Nor  need  we  go  to  the  South  or  to  our 
English  military  critics  for  this  opinion  as  to 
the  Northern  right.  In  a  recent  short  life  of 
Webster  written  for  the  American  Statesmen 
series,  a  distinguished  Republican  politician  and 
historian,  Henry  Cabot  Lodge,  in  criticising 
the  greatest  speech  of  our  greatest  orator, 
Webster's  in  reply  to  Hayne,  on  South  Caro- 
lina's nullification  doctrines,  makes  these 
astounding  statements : 

"That  it  was  probably  necessary,  at  all  events  Mr. 
Webster  felt  it  to  be  so,  to  argue  that  the  Constitution 
at  the  outset  was  not  a  compact  between  States,  but  a 
national  instrument.  .  .  .  When  the  Constitution  was 
adopted,  it  is  safe  to  say  that  there  was  not  a  man  in  the 
country,  from  Washington  and  Hamilton  on  the  one  side, 
to  George  Clinton  and  George  Mason  on  the  other,  who 
regarded  the  new  system  as  anything  but  an  experiment  en- 
tered upon  by  the  States,  and  from  which  each  and  every 
State  had  the  right  peaceably  to  withdraw,  a  right  which  was 
very  likely  to  be  exercised." 


6      NULLIFICATION,    SECESSION,    WEBSTER. 

This  is  a  declaration  of  the  right  of  secession 
at  the  inception  of  our  government  and  that 
every  one  held  that  belief.  If  this  be  correct, 
with  such  a  right  the  Union  was  no  enduring 
tie,  but  was  a  mere  rope  of  sand. 

He  adds  that  the  weak  places  in  Webster's 
armor  were  historical  in  nature.  In  support  of 
this  opinion,  he  instances  the  Virginia  and 
Kentucky  resolves  in  1799,  and  the  Hartford 
convention  of  1814;  a  few  disloyal,  some 
might  say  treasonable,  acts  and  declarations ; 
and  then  tells  us  a  confederacy  had  grown  into 
a  nation,  and  that  Mr.  Webster  set  forth  the 
national  conception  of  the  Union ;  and  the 
principles,  which  he  made  clear  and  definite, 
went  on  broadening  and  deepening  and  carried 
the  North  through  the  civil  war  and  preserved 
the  national  life.  A  singular  result  from  a 
speech,  if  it  were  so  fundamentally  and  histori- 
cally wrong. 

If  Mr.  Lodge,  and  those  who  agree  with 
him,  and  there  are  some  at  the  North  who  do, 
be  right,  and  Hayne  got  the  better  of  Web- 
ster in  that  celebrated  contest,  the  nullification 
doctrines  and  acts  of  South  Carolina  were  con- 
stitutionally sound  and  legal  ;  and  if  South 
Carolina  were  right  in  her  nullification,  the 
secession  of  the  South,  thirty  years  afterwards, 
was  also  right. 

We  do  not  concede  that  nullification  and 
secession  have  been  barred  because  the  course 
of  events  has  been  such  that  independent 


WEBSTER  AND  HAYNE.  J 

sovereign  States  have  grown  into  a  nation ; 
nor  do  \ve  admit  that  the  Union  and  its  indis- 
solubility  depend  only  on  the  result  of  an 
appeal  to  arms.  We  claim  with  Webster  that 
nullification  and  secession  were  entirely  inde- 
fensible constitutionally,  and  also  in  the  light 
of  history  at  the  time  of  the  foundation  of  our 
Constitution,  and  ever  since. 

There  can  be  no  doubt  of  the  effect  of  Web- 
ster's speeches  at  the  time  of  their  delivery ; 
they  aroused  the  national  pride  of  the  people, 
and  the  whole  country,  except  portions  of  the 
South,  responded. 

It  was  in  this  nullification  controversy  that 
Webster  won  the  title  of  the  Great  Expounder 
of  the  Constitution  ;  he  was  then  at  his  prime, 
physically  and  mentally.  Always  carefully 
dressed,  when  he  made  his  speeches,  in  the 
blue  coat  with  brass  buttons,  buff  waistcoat, 
and  white  cravat  of  the  Whigs  of  Fox's  time  ; 
his  large  frame,  his  massive  head  with  dark, 
straight  hair,  and  deep  set  and,  in  debate, 
luminous  black  eyes ;  his  superb  swarthy  com- 
plexion brightened  with  brilliant  color  that 
is  even  in  women  so  handsome  ;  his  grand 
and  rich  voice ;  his  emphatic  delivery ; — all 
served  to  make  him  the  most  impressive  of 
orators. 

It  was  often  said  by  his  contemporaries  at 
the  bar  that  unless  Webster  wholly  believed  in 
the  justice  of  the  cause  he  was  maintaining  he 
could  not  argue  wellA  He  was  not.  like  some 


8      NULLIFICATION,    SECESSION,    WEBSTER. 

of  the  greatest  advocates,  whose  ability  and 
ingenuity  are  only  fully  brought  forth  when 
they  have  to  contend  with  the  difficulties  of  a 
weak  and  almost  desperate  case. 

Hayne,  his  antagonist,  was  an  able,  eloquent, 
and  accomplished  orator.  His  speech  did  not 
create  that  enthusiasm  at  the  South  that  Web- 
ster's did  at  the  North  ;  but  his  own  State 
pertinaciously  adhered  to  its  doctrine  of  nullifi- 
cation and  saw  no  defeat  to  its  champion. 

There  were  no  less  than  three  speeches  of 
Hayne's — one  of  them,  the  second,  running 
through  two  days — and  the  same  number  of 
replies  by  Webster.  The  debate  took  place  in 
the  Senate  in  January,  1830;  it  arose  on  an 
amended  resolution  originally  offered  by  Mr. 
Foote  as  to  the  expediency  of  limiting  or 
hastening  the  sales  of  the  public  lands.  South 
Carolina  was  then  threatening  to  declare  the 
existing  tariff  null  and  void,  and  to  pass  laws 
preventing  the  United  States  from  collecting 
duties  in  its  ports.  Hayne  urged  that  the 
government  should  dispose  of  the  public  lands 
and  after  paying  the  national  debt  with  the 
proceeds  should  get  rid  of  the  remainder,  so 
that  there  should  not  be  a  shilling  of  permanent 
revenue ;  he  looked  with  alarm  on  the  con- 
solidation of  the  government.  To  get  the  sup- 
port of  the  West  against  the  East,  he  accused 
the  East  of  a  narrow  policy  towards  the  West 
as  to  the  public  lands  and  the  tariff,  "the 
accursed  tariff,"  as  he  termed  it,  which  kept 


WEBSTER  AND  HA  YNE.  g 

multitudes  of  laborers  in  the  East  to  the  detri- 
ment of  the  West.  In  his  second  speech,  Hayne 
not  only  attacked  the  East  and  its  policy  as  to 
the  public  lands  and  support  of  the  tariff,  but 
went  further  and  "  carried  the  war  into  Africa," 
as  he  styled  it,  reading  speeches,  pamphlets, 
and  sermons,  showing,  as  he  claimed,  the 
disloyalty  of  New  England  in  the  war  of 
1812. 

He  maintained  that  the  United  States  had 
exceeded  the  powers  granted  to  it  by  the  Con- 
stitution in  making  the  existing  tariff,  which 
protected  the  manufacturing  industry  of  the 
East,  only  a  section  of  the  country,  and  com- 
pelled the  non-manufacturing  States  to  pay 
tribute  to  it  ;  that  the  United  States  govern- 
ment was  a  compact  between  independent 
sovereign  States ;  that  each  of  the  States,  being 
an  independent  sovereign,  had  a  right  in  its 
own  sovereign  capacity  to  decide  whether  laws 
made  by  the  United  States  exceeded  the  powers 
given  it  by  the  Constitution,  and  if  a  State 
held  a  law  made  by  the  United  States  was  not 
authorized  by  the  Constitution,  it  could  treat 
it  as  null  and  void  ;  that  the  existing  tariff  was 
a  clear  and  palpable  violation  of  the  Constitu- 
tion, and  that  South  Carolina  could  and  would 
pass  laws  forbidding  and  preventing  the  col- 
lection in  its  territory  of  the  duties  levied 
under  it. 

Before  taking  up  Webster's  constitutional 
argument,  we  will  give  a  brief  account  of  his 


IO      NULLIFICATION,    SECESSION,   WEBSTER. 

answer  to  the  attack  made  on  himself  and 
the  East. 

Webster,  in  his  great  speech,  the  second  in 
reply  to  Hayne,  alluding  to  Hayne's  allegation 
that  he,  Webster,  had  slept  upon  his  first 
speech,  said,  "  he  must  have  slept  upon  it,  or 
not  slept  at  all "  :  and  he  assured  him  that  he 
did  sleep  on  it  and  slept  soundly. 

One  of  the  most  stinging  and  dramatic  events 
that  ever  occurred  in  the  Senate-chamber,  as  a 
distinguished  Senator  from  Maine  has  told  the 
writer,  was  the  manner  in  which  Webster 
turned  upon  his  opponents  the  taunt  of  Hayne, 
that  the  ghost  of  the  murdered  coalition,  like 
Banquo's,  would  not  down  at  their  bidding,  and 
had  brought  up  him  and  his  friends  to  defend 
themselves.  WTebster  replied  that  it  was  not 
the  friends  but  the  enemies  of  the  murdered 
Banquo,  at  whose  bidding  the- spirit  would  not 
down.  The  ghost  of  Banquo,  like  that  of 
Hamlet,  was  an  honest  ghost ;  then  turning  on 
and  pointing  to  Calhoun,  who,  as  Vice-Presi- 
dent in  Jackson's  first  administration,  was  pre- 
siding over  the  Senate,  and  whose  reputed 
ambition  to  succeed  as  President  had  signally 
failed,  he  asked  : 

"  Those  who  murdered  Banquo,  what  did  they  win  by  it? 
Substantial  good  ?  Permanent  power  ?  Or  disappointment 
rather,  and  sore  mortification  ; — dust  and  ashes — the  common 
fate  of  vaulting  ambition  overleaping  itself?  .  .  .  Did 
they  not  soon  find  that  for  another  they  had  '  filled  their 
mind,  that  their  ambition  had  put 


WEBSTER  AND  HAYNE.  II 

"  '  A  barren  sceptre  in  their  gripe. 

Thence  to  be  wrenched  by  an  unlineal  hand — 
No  son  of  theirs  succeeding.' " 

Calhoun  showed  his  emotion  and  moved  in 
his  chair.  In  a  speech  made  three  years  after- 
wards, when  a  Senator,  he  denied  that  he  had 
aspired  after  the  presidency. 

Webster  defended  at  great  length,  and  suc- 
cessfully, the  policy  of  the  East  as  to  the  public 
lands,  internal  improvements,  and  the  tariff. 
He  showed  that  Calhoun  himself  was  originally 
in  favor  of  internal  improvements,  and  that  he 
voted  for  tariffs;  that  in  1816  a  protective 
tariff  (denounced  as  such)  was  supported  by 
South  Carolina  votes  and  was  opposed  by  Mas- 
sachusetts ;  that  under  the  tariffs  of  1816, 
1824,  1828,  which  were  protective  tariffs  and 
had  become  the  policy  of  the  country,  Massa- 
chusetts became  interested  in  manufacturing; 
so  he,  Mr.  Webster,  in  1828  supported  a  pro- 
tective tariff,  though  in  1816  and  1824  he  had 
opposed  it. 

As  to  Hayne's  "  carrying  the  war  into  the 
enemy's  country  by  attacking  Massachusetts," 
Webster  asks.  "  Has  he  disproved  a  fact, 
refuted  a  proposition,  weakened  an  argument, 
maintained  by  me?"  And  "what  sort  of  a 
war  has  he  made  of  it  ?  Why,  sir,  he  has 
stretched  a  drag  net  over  the  whole  surface  of 
perished  pamphlets,  indiscreet  sermons,  frothy 
paragraphs,  and  fuming  popular  addresses ;  over 


12     NULLIFICATION,    SECESSION,   WEBSTER. 

whatever  the  pulpit  in  its  moments  of  alarm, 
the  press  in  its  heats,  and  parties  in  their  extrav- 
agance, have  severally  thrown  off  in  times  of 
general  excitement  and  violence." 

Webster,  declining  to  separate  these  accusa- 
tions and  answer  them,  asks :  "  But  what  had 
this  to  do  with  the  controversy  on  hand  ;  why 
should  New  England  be  abused  for  holding 
opinions  as  dangerous  to  the  Union  as  those 
which  he  now  holds?  Why  does  he  find  no 
fault  with  those  opinions  recently  promulgated 
in  South  Carolina?" 

Then  Webster,  noticing  Hayne's  eulogium  of 
South  Carolina,  instead  of  attacking  her,  puts 
himself  on  the  higher  plane  of  a  common 
national  pride  and  patriotism. 

"  I  shall  not  acknowledge  that  the  honorable  member  goes 
before  me  in  regard  for  whatever  of  distinguished  talent  or 
distinguished  character  South  Carolina  has  produced.  I  claim 
part  of  the  honor,  I  partake  in  the  pride  of  her  great  names. 
I  claim  them  for  countrymen  one  and  all.  The  Laurenses, 
the  Rutledges,  the  Pinckneys,  the  Sumters,  the  Marions, — 
Americans  all,  whose  fame  is  no  more  to  be  hemmed  in  by 
State  lines,  than  their  talents  and  patriotism  were  capable 
of  being  circumscribed  within  the  same  narrow  limits. 
Him  whose  honored  name  the  gentleman  himself  bears, 
does  he  esteem  me  less  capable  of  gratitude  for  his  patriot- 
ism, or  sympathy  for  his  sufferings,  than  if  his  eyes  had 
first  opened  on  the  light  of  Massachusetts,  instead  of  South 
Carolina?" 

Then  Webster  refers  to  the  great  harmony 
of  principle  and  feeling  formerly  existing  be- 
tween the  two  States.  "  Shoulder  to  shoulder 
they  went  through  the  revolution,  hand  in  hand 


WEBSTER  AND  HAYNE.  13 

they  stood  round  the  administration  of  Wash- 
ington and  felt  his  own  great  arm  lean  on  them 
for  support." 

It  was  one  of  those  great  efforts  delivered  on 
the  spur  of  the  moment,  which,  though  not 
written  out,  had  been  thought  and  studied 
beforehand.  The  bitter  invective,  the  grand 
patriotic  words  for  our  National  Union,  which 
make  the  heart  beat  and  quicken  the  blood,  came 
from  the  genius  of  the  orator.  Dr.  Francis 
Lieber,  a  most  competent  judge,  wrote  :  "To 
test  Webster's  oratory,  which  has  been  very 
attractive  to  me,  I  read  a  portion  of  my  favor- 
ite speeches  of  Demosthenes  and  then  read, 
always  aloud,  parts  of  Webster's  ;  then  returned 
to  the  Athenian,  and  Webster  stood  the  test."  ' 
The  question  of  the  supremacy  of  the  govern- 
ment of  the  Union  over  that  of  the  States  was 
familiar  to  Webster  ;  he  had  taken  part  in  the 
argument  of  the  cases  before  the  Supreme 
Court  involving  that  issue,  and  well  knew  the 
decisions  of  Marshall,  its  great  chief.  There  is 
no  such  thing  "as  extemporaneous  acquisi- 
tion," as  Webster  himself  said  of  his  speech. 
Its  views  and  arguments  have  been  adopted 
by  our  jurists,  and  by  Bancroft,  Hildreth, 
Fiske,  and  all  of  our  old  Northern  historians. 
Webster  was  probably  a  more  diligent  student 
than  Mr.  Lodge  gives  him  credit  for ;  his  habit 
being  to  rise  in  the  early  morn  and  work  then. 
The  writer  of  this  has  heard  him  say  that  he 

1  Lodge's  Webster,  p.  187. 


14      NULLIFICATION,    SECESSION,    WEBSTER. 

had  read  through  all  the  volumes  of  Hansard's 
Parliamentary  Debates. 

In  giving  Webster's  argument  on  the  question 
of  nullification,  we  will  use  his  speech  in  reply 
to  Hayne,  and  his  subsequent  speech  in  answer 
to  Calhoun,  delivered  three  years  later,  in  1833. 

He  showed,  as  we  shall  see,  that  by  adopting 
the  Constitution  a  national  government  was 
formed,  with  legislative  authority  to  make  laws 
that  should  be  supreme  within  the  powers 
granted  in  the  Constitution,  with  an  Executive 
to  carry  out  those  laws,  and  a  supreme  Judicial 
Department  that  should  decide  all  questions 
arising  under  those  laws,  and  whether  they 
were  within  the  granted  powers,  whose  decision 
no  State  could  question. 

After  disposing  of  the  personal  attack  on 
himself  and  that  against  the  East,  Webster 
took  up  that  against  the  Union  ;  he  went  back 
to  its  formation,  treating  it  historically.  Under 
the  confederacy  made  between  the  States  the 
whole  power  of  the  government  was  in  the 
Continental  Congress.  Though  it  could  make 
war  and  peace,  it  could  raise  troops  and  obtain 
its  revenues  only  through  the  action  of  the 
several  States  ;  it  could  not  even  regulate  com- 
merce and  had  no  coercive  power  over  the 
States  ;  its  executive  powers  were  exercised  by 
committees  and  officers  appointed  by  the  Con- 
gress. This  Continental  Congress  carried  the 
country  safely  through  the  revolution  ;  but 
during  the  few  years  afterwards, — without  the 


WEBSTER  AND  HAYNE.  1$ 

rights  and  powers  essential  to  an  effective 
government,  without  a  Judiciary  and  a  respon- 
sible Executive,  the  States  quarrelling  amongst 
themselves  and  struggling  with  internal  troubles 
— its  authority  became  so  weakened  that  it 
inspired  respect  neither  at  home  nor  abroad  ' ; 
and  the  people  of  all  the  States,  finding 
the  necessity  of  a  stronger  government,  the 
separate  States  entered  into  a  convention  to 
form  one. 

The  first  resolution  of  this  convention  was, 
that  the  government  of  the  United  States 
ought  to  consist  of  a  Supreme  Legislature, 
Judiciary,  and  Executive ;  this  showed  the 
power  that  it  intended  to  give  the  government. 

The  declaration  in  the  preamble  of  the 
Constitution  they  formed,  set  forth :  "  We,  the 
PEOPLE  of  the  United  States,  in  order  to 
form  a  more  perfect  Union,"  etc.,  "  do  ordain 
and  establish  this  Constitution  for  the  United 
States  of  America." a  It  was  not  that  the  States 
or  the  people  of  the  separate  States  made  the 
Constitution,  but  it  was  the  people  of  the  whole 
United  States,  and  the  acceptance  of  this  Con- 
stitution was  submitted  to  conventions  of  each 

1  Chief-Justice  Marshall,  in  his  opinion  in  the  case  of 
Cohens  vs.  Virginia,  says  that  its  requisitions  were  habitually 
disregarded  by  the  States.  Mr.  John  Fiske,  in  his  admirable 
work,  called  The  Critical  Period  of  American  History,  fully 
shows  the  inefficiency  and  inadequacy  of  the  government 
of  the  Confederacy. 

s  See  Webster's  speech  in  answer  to  Calhoun,  Webster's 
Speeches,  vol.  ii.,  page  180.  Ed.  of  1850. 


1 6  NULLIFICATION,    SECESSION,    WEBSTER, 

State,  chosen  by  the  people,  and  not  to  the 
State  governments  and  legislatures. 

It  was  from  Webster's  declaration,  "  It  is  the 
people's  Constitution,  the  people's  government ; 
made  for  the  people ;  made  by  the  people  and 
answerable  to  the  people,"  that  Lincoln 
took  the  closing  words  of  his  short  immortal 
Gettysburg  address,  and  applied  them  to  the 
national  soldiers  who  had  there  died  for  the 
Union  :  "  That  this  nation,  under  God,  shall 
have  a  new  birth  of  freedom,  and  that  gov- 
ernment of  the  people,  by  the  people,  for  the 
people,  shall  not  perish  from  the  earth." 

Webster  referred  to  contemporary  history, 
to  the  writings  of  the  Federalist,  to  the  debates 
in  the  conventions,  to  the  publications  of  friends 
and  foes,  as  all  agreeing  in  the  statement  that 
a  change  had  been  made  from  a  confederacy  of 
States  to  a  different  system,  to  a  national  gov- 
ernment. The  writers  of  the  Federalist  say  : 

"However  gross  a  heresy  it  may  be  to  maintain,  that  a 
party  to  a  compact  has  a  right  to  revoke  the  compact,  the 
doctrine  itself  has  had  respectable  advocates.  The  possibility 
of  a  question  of  this  nature  proves  the  necessity  of  laying  the 
foundations  of  our  national  government  deeper  than  in  the 
mere  sanction  of  delegated  authority.  The  fabric  of  Ameri- 
can empire  ought  to  rest  on  the  solid  basis  of  the  consent  of 
the  people" 

And  amongst  all  the  ratifications  by  the 
States,  there  is  not  one  which  speaks  of  the 
Constitution  as  a  compact  between  States. 
"  They  say  they  ordain  and  establish  it ;  we  do 
not  speak  of  ordaining  leagues  and  compacts." 


WEBSTER  AND  HAYNE.  \-J 

He  argued  that  the  Constitution  that  was  formed 
was  not  a  league,  confederacy,  or  compact  be- 
tween States,  but  a  government  proper,  creating 
direct  relations  between  itself  and  'individuals 
of  the  States.  It  punished  all  crimes  committed 
against  the  United  States.  It  had  power  to 
tax  individuals,  in  any  mode  and  to  any  extent, 
and  it  possessed  the  power  of  demanding  from 
individuals  military  service.  "  It  does  not  call 
itself  a  compact ;  it  uses  the  word  compact  but 
once  and  that  is  when  it  declares  that  the 
States  shall  enter  into  no  compact.  It  does 
not  call  itself  a  league  or  a  confederacy  but  it 
declares  itself  a  constitution."  "A  constitution 
is  the  fundamental  regulation  which  determines 
the  manner  in  which  the  public  authority  is  to 
be  executed,"  l  "  the  very  being  of  the  political 
society."  It  says,  this  Constitution  shall  be  the 
law  of  the  land,  anything  in  any  State  consti- 
tution to  the  contrary  notwithstanding ;  "  and 
it  speaks  of  itself,  too,  in  plain*contradistinction 
from  a  confederation  ;  for  it  says  that  all  debts 
contracted  and  all  engagements  entered  into 
by  the  United  States  shall  be  as  valid  under 
this  Constitution  as  under  the  confederation ; 
it  does  not  say  as  valid  under  this  compact,  or 
this  league,  or  this  confederation." 

1  Webster's  definition  of  a  constitution  apparently  is  not 
a  full  one.  A  constitution  is  the  fundamental  statement  of 
the  powers  granted  to  the  government  established  by  it ;  and 
it  may,  as  Webster  says,  also  contain  the  regulation  under 
which  its  authority  is  to  be  executed. 


1 8      NULLIFICATION,    SECESSION,    WEBSTEfi. 

"Again  the  Constitution  speaks  of  that 
political  system  which  it  established  as  the 
Government  of  the  United  States.  Is  it  not 
doing  strange  violence  to  language  to  call  a 
league  or  compact  between  sovereign  powers  a 
government" 

The  United  States  Government  thus  origi- 
nated from  the  people,  as  did  the  State  govern- 
ments. It  is  created  for  one  purpose,  the  State 
governments  for  another;  it  has  its  own 
powers,  they  have  theirs.  There  is  no  more 
authority  with  them  to  arrest  the  operation  of 
a  law  of  Congress,  than  with  Congress  to  arrest 
the  operation  of  their  laws. 

It  was  an  Union  among  the  States  that 
should  last  for  all  time.  It  contains  provisions 
for  its  amendment,  none  for  its  abandonment 
at  any  time.  It  declares  that  new  States  may 
come  into  it,  but  it  does  not  declare  that  old 
States  may  go  out. 

The  Government  was  brought  into  existence 
for  the  very  purpose  of  imposing  certain  salu- 
tary restraints  on  the  State  governments  :  it 
gave  the  United  States  sovereign  powers  over 
the  States  ;  it  could  make  war,  it  could  coin 
money,  it  could  make  treaties  ;  it  prohibited  a 
State  from  making  war,  coining  money,  or  mak- 
ing treaties ;  it  gave  the  United  States  the 
exclusive  power  to  make  citizens.  The  people 
erected  this  Government  ;  they  gave  it  a  Con- 
stitution, and  in  that  Constitution  they  enum- 
erated the  powers  they  bestowed  ;  they  made 


WEBSTER  AND  HAYNE.  IQ 

it  a  limited  Government  ;  they  defined  its 
authority.  They  did  not  leave  it  to  the  States 
to  carry  out  the  legal  action — the  application 
of  law  to  individuals — as  the  Confederacy  did. 
In  the  Constitution  itself  it  declared  the  Consti- 
tution and  the  laws  of  the  United  States,  made 
in  pursuance  thereof,  shall  be  the  supreme  law  of 
the  land,  anything  in  the  constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding.  No 
State  law  is  to  be  valid  which  comes  in  conflict. 

Having  enumerated  the  specified  powers  of 
the  Government,  it  gives  to  Congress  as  a  dis- 
tinct and  substantive  clause,  the  power  to  make 
all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers 
and  all  other  powers  vested  by  this  Constitu- 
tion in  the  Government  of  the  United  States  or 
in  any  department  or  office  thereof. 

Who  is  to  decide  when  a  controversy  arises 
between  the  laws  of  a  State  and  the  United 
States?  The  claim  of  South  Carolina  is  that 
instead  of  one  tribunal  we  are  to  have  four  and 
twenty,  as  many  tribunals  as  States  ;  that  each 
State  is  at  liberty  to  decide  as  to  the  constitu- 
tionality of  an  act  for  itself  and  none  bound  to 
respect  the  decision  of  others. 

"  But  in  regard  to  this  question  the  Constitution  is  still  more 
express  and  emphatic.  It  declares  that  the  judicial  power  of 
the  United  States  shall  extend  to  all  cases  in  law  or  equity 
arising  under  the  Constitution,  laws  of  the  United  States,  and 
treaties  ;  that  there  shall  be  one  Supreme  Court,  and  that  this 
Supreme  Court  shall  have  appellate  jurisdiction  of  all  these 
cases,  subject  to  such  exceptions  as  Congress  may  make." 


2O      NULLIFICATION,    SECESSION,    WEBSTER. 

"  No  language  could  provide  with  more  effect  and  precision 
than  is  here  done,  for  subjecting  constitutional  questions  to 
the  ultimate  decision  of  the  Supreme  Court."  "And  after 
the  Constitution  was  formed  and  while  the  whole  country  was 
engaged  in  discussing  its  merits,  one  of  its  most  distinguished 
advocates,  Madison,  told  the  people  '  it  was  true  that  in  con- 
troversies relating  to  the  boundary  between  the  two  jurisdic- 
tions, the  tribunal  which  is  ultimately  to  decide  is  to  be 
established  under  the  General  Government.'  Mr.  Martin 
who  had  been  a  member  of  the  convention,  asserted  the  same 
thing  to  the  Legislature  of  Maryland  and  urged  it  as  a  reason 
for  rejecting  the  Constitution.1  Mr.  Pinckney,  himself  also  a 
leading  member  of  the  convention,  declared  it  to  the  people 
of  South  Carolina  ;  everywhere  it  was  admitted  by  friends 
and  foes  that  this  power  was  given  to  the  United  States 
Judiciary  in  the  Constitution. " 

We  must  bear  in  mind  that  this  discussion 
was  on  the  power  of  South  Carolina  while  re- 
maining in  the  Union  to  declare  the  laws  of  the 
United  States  null  and  void,  and  her  own  laws 
preventing  their  execution  valid.  A  singular 
claim  that  a  State  could  enjoy  the  benefits  of 
the  Union  and  at  the  same  time  disobey  its 
laws ;  this  is  nullification  which  Mr.  Webster 
had  to  combat.  His  argument,  however,  applies 

1  As  the  whole  question  of  nullification  depends  upon 
whether  a  State  is  bound  by  a  decision  of  the  United  States 
Court  we  give  Mr.  Martin's  succinct  and  comprehensive  state- 
ment of  the  power  that  the  third  article  of  the  Constitution 
conferred  on  the  United  States.  "Whether,  therefore,  any 
laws  or  regulations  of  the  Congress,  any  acts  of  its  President 
or  other  officers,  are  contrary  to,  or  not  warranted  by  the  Con- 
stitution, rests  only  with  the  judges,  who  are  appointed  by 
Congress,  to  determine  ;  by  whose  determination  every  State 
must  be  bound."  Luther  Martin's  letter,  Elliot's  Debates 
(second  ed.),  1863,  vol.  i.,  p.  380. 


WEBSTER  AND  HA  YNE.  21 

equally  strongly  to  the  claim  of  the  right  of 
secession.  Indeed  he  says  in  his  speech  in  re- 
ply to  Calhoun  : 

"  Therefore,  since  any  State  before  she  can  prove  her  right 
to  dissolve  the  Union,  must  show  her  authority  to  undo  what  has 
been  done,  no  State  is  at  liberty  to  secede  on  the  ground  that 
the  other  States  have  done  nothing  but  accede.  She  must  show 
that  she  has  a  right  to  reverse  what  has  been  ordained,  to 
unsettle  and  overthrow  what  has  been  established,  to  reject 
what  the  people  have  adopted,  and  to  break  up  what  they  have 
ratified,  because  these  are  the  terms  which  express  the  tran- 
sactions which  have  actually  taken  place.  In  other  words, 
she  must  show  her  right  to  make  a  revolution." 

Between  Webster's  debate  with  Hayne,  and 
that  with  Calhoun  three  years  afterwards,  South 
Carolina  had  called  a  convention  of  its  people 
and  passed  resolutions  declaring  the  United 
States  tariff  laws  null  and  void,  and  made  laws 
of  her  own,  forbidding  and  preventing  the  col- 
lection of  duties  in  the  State,  with  threats  of 
secession  if  an  attempt  to  collect  them  were 
made.  Measures  had  also  been  taken  to  make 
a  forcible  resistance — munitions  of  war  collec- 
ted and  the  militia  organized  and  drilled.  For- 
tunately for  the  country  at  that  crisis  Andrew 
Jackson,  the  President,  was  a  Southerner  and 
owner  of  many  slaves  and  true  to  the  Union. 
He  was  a  man  of  indomitable  will,  believed  in 
implicitly  and  trusted  and  enthusiastically  fol- 
lowed by  the  great  mass  of  the  people.  Any 
policy  of  his  commanded  success.  He  did  not 
hesitate  as  to  his  course,  he  at  once  issued  a 
proclamation,  and  sent  a  message  to  Congress 


22      NULLIFICATION,    SECESSION,    WEBSTER. 

asking  for  powers  to  enforce  the  tariff  laws  of 
the  United  States  and  if  necessary  to  remove 
the  custom-houses  to  safe  places.  In  his  proc- 
lamation he  declared  that  the  Constitution  of 
the  United  States  forms  a  government,  not  a 
league  ;  that  it  is  a  government  that  acts  on  the 
people  individually  and  not  on  the  States,  and 
whether  it  be  formed  by  compact  between  the 
States  or  in  any  other  manner  its  character  is 
the  same.  "  The  States  retained  all  the  power 
of  the  government,"  he  said,  "  they  did  not 
grant :  but  each  State,  having  expressly  parted 
with  so  many  powers  as  to  constitute,  jointly 
with  the  other  States,  a  single  nation,  cannot 
from  that  period  possess  any  right  to  secede, 
because  such  secession  does  not  break  a  league, 
but  destroys  the  unity  of  a  nation."  As  a 
South  Carolinian — Jackson  supposed  he  was 
born  in  South  Carolina,  though  his  biographer, 
Parton,  says  it  was  in  North  Carolina,  near  the 
line — he  earnestly  pleaded  with  his  fellow-citi- 
zens not  to  resist  the  laws  of  the  United 
States.1  He  had  previously  at  a  dinner  in  cele- 
bration of  Jefferson's  birthday,  when  nullifica- 
tion sentiments  had  been  advanced,  given  as 
his  toast :  "  Our  Federal  Union :  it  must  be 
preserved." 

It  was  generally  said  and  believed  that  Jack- 
son had  threatened   to  hang  Calhoun   as  high 

1  Jackson's  proclamation,  Elliot's  Debates,  582.  Elliot's  De- 
bates were  published  by  authority  of  Congress,  Calhoun  highly 
praising  them.  See  his  letter  in  the  beginning  of  vol.  i. 


WEBSTER  AND  HA  YNE,  23 

as  Haman  if  the  law  was  resisted.  This  from 
Jackson  was  no  idle  threat.  There  had  been 
no  other  President  of  such  inflexible  will.  No 
other  general  ever  assumed  the  authority  he  did 
in  the  Indian  wars  and  in  that  of  1812.  He 
had  fought  those  campaigns  and  gained  the 
battle  of  New  Orleans,  suffering  at  times  agony 
from  old  wounds  received  in  a  street  brawl,  that 
would  have  disabled  any  ordinary  commander. 
Thrice  when  in  command  he  had  exercised  the 
power  of  punishing  capitally  ;  he  had  hanged 
Arbuthnot  and  Ambrister ;  again,  he  had  a 
militiaman  shot ;  and  at  the  close  of  the  war 
had  permitted  the  execution  of  six  Tennessee- 
ans,  though  they  pleaded  in  defence,  and  prob- 
ably believed,  that  their  time  of  enlistment  had 
ended.  The  threat  of  hanging,  however,  did 
not  daunt  Calhoun,  who  declared  boldly,  per- 
haps pathetically,  that  Carolina  alone  would 
resist,  even  to  death  itself. 

Mr.  Clay,  as  on  other  occasions  where  a  great 
crisis  had  arisen,  effected  a  compromise.  A 
force  bill  to  collect  duties,  which  South  Caro- 
lina strenuously  opposed,  was  enacted  by  large 
majorities  in  the  Senate  and  House  of  Repre- 
sentatives ;  and  a  bill  was  afterwards  passed 
gradually  reducing  the  import  duties  then  levied, 
which  Calhoun  and  South  Carolina  assented  to. 


CHAPTER  II. 

THE  NATIONALITY  OF  THE    CONSTITUTION. 

THE  claim  of  South  Carolina,  at  the  time  of 
her  threatened  nullification  and  secession,  and 
of  the  South  at  the  period  of  our  civil  war,  is, 
that  the  Constitution  which  the  States  adopted 
formed  them  into  a  confederacy  and  not  a  na- 
tion. It  is  admitted,  and  is  not  denied,  that 
if  the  government  established  was  national  there 
can  be  no  valid  claim  of  a  component  part  to 
treat  its  laws  as  of  no  validity,  a  nullity,  or  to 
dissolve  it  at  its  will. 

Indeed,  Calhoun,  the  great  expounder  of  the 
nullification  and  secession  doctrine,  considered 
this  to  be  a  vital  matter,  and  always  insisted 
that  the  United  States  was  not  a  nation.  He 
complained  that  the  reporters  made  him  say, 

"  this  Nation  instead  of  this  Union."  "  I  never  use  the  word 
nation  in  speaking  of  the  United  States  ;  I  always  use  the  word 
union  or  confederacy.  We  are  not  a  nation,  but  a  union,  a 
confederacy  of  equal  and  sovereign  States.  England  is  a  na- 
tion, Austria  is  a  nation,  Russia  is  a  nation,  but  the  United 
States  are  not  a  nation."  * 

The  South  during  the  civil  war  claimed  that 
the  States  made  the  government  of  the  United 

1  Great  Senators,  by  Oliver  Dyer,  p.  153. 
24 


NATIONALITY  OF   THE   CONSTITUTION.        2$ 

States,  and  that  the  States  were  and  remained 
independent  sovereign  nations.  And  each 
State  being  an  independent  sovereign  nation, 
had  the  right  to  decide  whether  the  power  it 
had  given  to  the  United  States  Government 
was  properly  exercised  by  its  Legislature  or  its 
officers,  and  to  declare  and  treat  as  a  nullity 
and  as  void  any  law  passed,  any  act  done  in 
excess  of  that  authority,  and  to  withdraw  from 
the  Confederacy — that  is,  to  secede,  at  its  will. 

It  will  at  once  be  seen,  as  the  time  during 
which  the  Union  is  to  endure  is  not  limited  in 
the  Constitution,  that,  if  this  right  of  secession 
exists,  a  State  could  leave  the  day  after  it 
adopted  the  Constitution.  The  Union  is  either 
perpetual  or  dissoluble  at  pleasure.  In  the 
secession  ordinances  passed  by  the  Southern 
States  at  the  commencement  of  the  civil  war 
the  ground  was  taken  that  the  States  of  their 
sovereign  right  and  will  resumed  their  place  as 
independent  nations.  That  is,  the  duration  of 
the  Union  was  from  the  very  beginning  at  the 
caprice  of  each  and  every  State.  No  less,  if  the 
doctrine  of  nullification  be  correct,  that  each 
State  can  declare  and  treat  as  null  and  void  the 
acts  of  the  United  States  it  deems  beyond  the 
powers  it  has  granted,  it  can  nullify  and  make 
void  the  laws  of  the  United  States,  all  the  acts 
of  its  officers,  all  the  judiciary  proceedings  at 
its  caprice. 

Nor  is  it  extravagant  to  say  caprice.  South 
Carolina's  nullification  and  secession  acts  and 


V26  '    NULLIFICATION,    SECESSION. 

resolves  in  1832  were  on  the  ground  of  the 
unconstitutionally  of  a  protective  tariff.  There 
had  been  a  great  number  of  protective  tariffs  en- 
acted before,  which  South  Carolina  had  favored 
by  her  votes,  and  the  second  law  of  the  United 
States,  enacted  at  the  commencement  of  the 
government,  at  the  first  session  of  the  first  Con- 
gress, was  for  the  protection  and  encouragement 
of  manufactures.  Its  preamble  is :  "  Whereas,  it 
is  necessary  for  the  support  of  government,  for 
the  discharge  of  the  debts  of  the  United  States, 
and  the  encouragement  and  protection  of  man- 
ufactures, that  duties  be  laid  on  goods,  wares, 
and  merchandise  imported."  Madison,1  who 
was  the  leader  of  the  House  of  Representatives 
in  this  first  Congress,  wrote  that  no  one  ques- 
tioned the  right  of  making  protective  duties. 
Billions  of  dollars  have  been  levied  by  the  col- 
lection of  protective  duties  from  the  beginning  of 
the  government  to  the  present  day.  No  litigant 
paying  duties  even  as  excessive  as  those  on 
pearl  buttons  and  tin  plates,  nor  lawyer,  a  class 
not  diffident  in  advancing  untenable  claims,  has 
been  found,  as  far  as  we  know,  to  question 
before  the  Supreme  Court  the  legality  of  these 
duties,  because  they  were  protective  or  paid  this 
slight  reverence  to  a  doctrine  in  support  of  which 
South  Carolina  threatened  war  and  secession. 

1  See  4  Elliot's  Debates,  pp.  345  and  349,  showing  at  the  in- 
ception and  in  the  early  period  of  our  government  protective 
duties  were  apparently  universally  approved  by  Congress  and 
the  Presidents. 


NATIONALITY  OF   THE   CONSTITUTION.        27 

It  seems  only  necessary  to  state  the  vicious- 
ness  of  this  doctrine  of  nullification  and  seces- 
sion, that  every  State  could  practically  put  its 
veto  on  every  law  and  act  of  the  General  Gov- 
ernment it  questioned,  and  dissolve  it  at  its 
pleasure,  to  prove  that  no  such  impracticable 
government  was  established.  Certainly,  reason- 
ing a  priori,  this  doctrine  has  no  standing. 

Our  General  Government  differs  from  that  of 
Great  Britain  and  nearly  all  other  governments 
in  that  it  is  created  by  a  written  Constitution, 
and  its  authority  is  limited  by  that  Constitu- 
tion. The  power  of  Parliament  is  imperial  ; 
there  is  no  limit  to  it ;  it  does  what  it  deems 
best.  There  apparently  is  an  almost  insur- 
mountable difficulty  in  the  writers  of  other 
countries,  only  knowing  unlimited,  imperial 
supreme  governments,  to  comprehend  that  a 
government  of  limited  powers  can  be  supreme 
in  the  powers  granted  to  it.  Knowing  that  the 
powers  of  our  General  Government  are  limited, 
they  are  apt  to  draw  the  conclusion  that  the 
fundamental  unlimited  power  must  be  in  the 
subordinate  component  parts,  the  States. 

Our  States,  as  well  as  the  General  Govern- 
ment, have  limited  powers  granted  by  written 
constitutions.  The  State  governments  are  not 
only  limited  in  their  powers,  but  the  people, 
who  established  them  in  their  constitutions, 
have  invariably  recognized  the  supreme  power 
of  the  General  Government ;  in  none  of  them 
have  they  undertaken  to  confer  on  the  State 


28  NULLIFICATION,    SECESSION. 

Legislatures  or  government  powers  in  conflict 
with  the  sovereign  national  powers  of  the  Gen- 
eral Government.  The  powers  given  to  the 
State  governments  are  subordinate  and  local. 
All  the  constitutions,  State  and  General,  have 
had  the  sanction  and  an  adoption  by  the 
people. 

The  argument  of  Hayne,  Calhoun,  and  his 
followers,  and  of  all  Southern  writers — that  the 
United  States  Constitution  is  a  compact  or 
agreement  amongst  the  several  States  as  inde- 
pendent sovereign  nations,  and  that  in  every 
compact  between  nations,  a  contracting  power, 
where  there  is  a  disagreement,  as  there  is  no 
superior  authority  over  them,  has  the  right  to 
maintain  the  correctness  of  its  construction — 
ignores  the  case  where  the  compact  may  be 
one  for  the  making  of  the  several  contracting 
powers  one  nation. 

Compact  means  an  agreement,  nothing  more 
or  less,  whether  applied  to  states  or  individu- 
als. It  cannot  be  denied  that  independent 
sovereign  nations  can  by  compact  or  agreement 
make  themselves  into  a  perpetual,  indissoluble 
nation.  The  voluntary  combination  of  inde- 
pendent sovereign  powers,  or  nations,  or  states 
into  one  national  union  must  be  by  compact. 

The  question  therefore  resolves  itself  into 
this,  What  was  the  agreement  or  compact  made 
between  the  people  of  the  States  ?  Was  it  for 
a  nation  with  supreme  powers  over  the  subdi- 
visions of  States  in  its  territory  and  all  living 


NATIONALITY  OF  THE   CONSTITUTION.        2Q 

therein,  as  far  as  power  was  given  to  it,  and  for 
perpetuity,  or  was  it  for  a  confederacy  or  league 
for  certain  purposes,  limited  by  the  right  of 
each  of  the  parties  to  it,  to  judge  whether  the 
government  exceeded  its  authority,  and  at  its 
pleasure  to  dissolve  it  ? 

In  other  words,  the  fundamental  question  is, 
Was  an  indissoluble  national  power  made  or  a 
confederacy  or  league  declared  by  the  adopting 
of  the  Constitution  ? 

Webster  perhaps  unfortunately  used  the  word 
compact  in  his  argument  when  he  said  the  Con- 
stitution was  not  a  compact,  meaning  it  was  not 
a  mere  agreement  amongst  the  States,  a  league, 
or  confederacy,  but  that  it  was  the  fundamental 
declaration  of  a  nation. 

Madison  agreed  with  Webster  as  to  secession 
and  nullification  and  the  powers  of  the  General 
Government,  and  of  its  judiciary  to  define  and 
pass  on  them,  but  he  held  "  that  the  government 
with  its  powers  was  established  by  a  compact 
which  each  of  the  States  had  entered  into,  the 
authority  for  it  being  derived  from  the  same 
source  as  that  of  the  State  governments — the 
people."  '  Webster  himself,  in  his  speech  in 
answer  to  Calhoun,  recognizes  that  compact 
may  mean  an  agreement  for  a  nation.  Speak- 
ing of  the  Constitution,  he  says  :  "  Founded  in 
or  on  the  consent  of  the  people,  it  may  be  said 
to  rest  on  compact  or  consent,  but  it  is  itself 

1  See  also,  to  same  effect,  North  American  Review,  Oct., 
1830,  p.  537,  Madison's  letter  to  Edward  Everett. 


3O  NULLIFICATION,    SECESSION. 

not  the  compact,  but  the  result." '  It  is  neces- 
sary to  constantly  bear  in  mind  that  the  word 
compact,  used  in  reference  to  the  Constitution, 
is  consistent  with  its  nationality. 

The  prominent  writers  who  maintain  the  right 
of  nullification  and  secession,  Calhoun,  Davis, 
Stephens,  and  Bledsoe  in  his  work,  Is  Davis  a 
Traitor  ?  all  assert  to  an  excessive  length  that 
any  person  or  any  State  that  uses  the  word 
compact  in  reference  to  the  Constitution  admits 
their  theory  of  government,  which  is,  that  the 
Union  between  the  States  was  a  mere  dissolu- 
ble agreement,  in  which  the  States  retained 
their  sovereignty  and  right  of  judgment  over 
the  acts  done  by  the  United  States.  They 
mention  the  State  of  Massachusetts,  Washing- 
ton's, Madison's,  and  even  Webster's  subsequent 
use  of  that  word  as  evidence  of  their  assent  to 
this  doctrine.  The  fault  in  their  reasoning  is 
what  logicians  call  the  undistributed  middle ; 
they  assume  that  the  persons  or  States  using 
the  word  compact  are  speaking  of  the  sort  of 
compact  they  maintain  the  Union  to  be — a 
league  or  mere  dissoluble  agreement,  when  in 
fact  they  may  be,  and  are,  speaking  of  another 
sort  of  compact,  a  compact  for  a  national  gov- 
ernment. 

We  propose  to  show  that  by  the  adoption  of 
the  Constitution  the  people  of  the  States  formed 
themselves  into  a  nation. 

1  Webster's  Speeches,  vol.  ii.,  ed.  1850,  p.  177. 


NATIONALITY  OF   THE   CONSTITUTION.        31 

First :  The  Constitution  declares  its  perpetu- 
ity, and  the  powers  given  by  it  to  the  govern- 
ment established  are  those  of  an  indissoluble 
nation  with  supreme  authority  over  every  one, 
not  of  a  confederacy  of  nations. 

Second  :  The  members  of  the  convention 
that  made  the  Constitution  intended  to  make 
a  national  government ;  and  that  they  consid- 
ered that  they  had  done  so  is  conclusively  shown 
by  the  contemporary  reports  of  their  debates 
and  proceedings.  The  members  of  the  conven- 
tions of  the  people  of  the  several  States  that 
adopted  the  Constitution  without  exception 
also  considered  and  spoke  of  the  government 
as  national. 

Third  :  That  the  government  exercised  its  su- 
preme national  power  repeatedly  and  uniformly 
over  the  States  and  over  all  the  citizens  of  every 
State,  from  the  time  of  its  inception  to  the  civil 
war.  Historically  we  were  a  nation. 

Fourth  :  That  the  general  belief  that  the 
Virginia  resolutions  questioned  this  supremacy 
and  nationality  is  wholly  unfounded. 

There  is  no  question  of  the  universal  opin- 
ion after  the  termination  of  the  war  of  the  Revo- 
lution that  the  provisions  under  which  the  States 
were  associated,  made  on  the  i$th  of  Novem- 
ber, 1777,  had  failed  essentially  in  giving  to  the 
Confederate  Congress  government  the  neces- 
sary powers  to  carry  it  on.1  The  Confederacy 

1  The   condition  of  affairs  then  is  well  stated  in  Fiske's 
Critical  Period  of  American  History. 


32  NULLIFICATION,    SECESSION. 

was  made  by  delegates  from  the  Legislatures  of 
the  State  governments  of  the  different  States  ; 
the  powers  of  the  Confederacy  were  given  to  a 
Congress  which  consisted  of  one  body  or  House, 
and  in  that  Congress  each  State  had  one  vote, 
that  of  Delaware,  with  a  diminutive  territory 
and  about  one  sixteenth  of  the  population, 
equalling  that  of  Virginia.  The  Constitution 
which  contains  and  defines  the  powers  given  to 
the  United  States  Government  was  made  by 
delegates  appointed  by  the  different  State 
Legislatures  of  the  Confederacy,  all  being  rep- 
resented except  Rhode  Island.  Its  members 
were  the  most  prominent  and  distinguished  men 
of  the  country.  After  the  most  careful,  thorough, 
and  patient  examination  and  discussion,  ex- 
tending through  four  months,  they  formed  the 
instrument  giving  the  powers  of  the  new  gov- 
ernment. They  sent  it  to  the 'existing  Congress 
of  the  Confederacy,  with  the  request  that  it 
might  be  submitted  to  a  convention  of  delegates 
chosen  in  each  State  by  the  people  thereof, 
under  the  recommendation  of  its  Legislature, 
for  their  consideration  and  assent  if  approved  of. 

The  Continental  Congress  unanimously 
forwarded  the  proposed  Constitution  to  the 
Legislatures  of  the  several  States,  who  each  sub- 
mitted it  to  a  convention  of  the  people  called 
for  the  purpose  of  deciding  whether  they  would 
adopt  it. 

By  necessity  the  submission  was  to  the  people 
of  the  States  separately.  The  acceptation  or 


NATIONALITY  OF  THE  CONSTITUTION.        33 

rejection  rested  on  them,  the  people  ;  they  ap- 
pointing delegates  to  carefully  consider  the 
matter  and  to  decide  for  them.  Thus  the 
adoption  of  the  Constitution  was  not  only  sanc- 
tioned by  the  Congress  of  the  Confederacy,  by 
the  separate  State  governments,  but  finally  by 
the  people  themselves  of  every  State  acting  by 
virtue  of  their  fundamental,  sovereign  power, 
they  appointing  the  delegates  who  met  in  con- 
vention, and  who  in  each  State  decided  for  the 
people,  whether  they  would  or  would  not  enter 
into  this  new  form  of  government.  A  sanction 
more  binding  on  every  one  could  not  have  been 
made. 

Mr.  Webster's  argument  that  our  government 
is  that  of  a  nation  and  not  a  confederacy,  was 
in  a  great  measure  founded  on  the  Constitution 
itself.  There  are  other  declarations  and  powers 
in  the  Constitution,  besides  those  he  so  forcibly 
presented,  which  should  not  be  overlooked. 
The  Constitution  is  a  very  brief,  and,  as  time  has 
shown,  a  very  perfect  instrument.  It  gives  to  a 
general  government  it  establishes,  all  the  powers 
necessary  for  the  existence  and  maintenance  of 
a  nation. 

Its  first  declaration  is,  We,  the  People  of  the 
United  States,  do  ordain  and  establish  this  Con- 
stitution. This  is  in  emphatic  contrast  to  the 
preamble  and  articles  of  the  Confederacy.  The 
preamble  of  the  Confederacy  is,  Articles  of  con- 
federation and  perpetual  union  between  the 
"  States  of  New  Hampshire,  Massachusetts 


34  NULLIFICATION,    SECESSION. 

Bay,"  etc.  Article  I.  is,  "  The  style  of  this  Con- 
federacy shall  be  '  The  United  States  of  Amer- 
ica."' Article  III.,  "  The  said  States  hereby 
severally  enter  into  a  firm  league  of  friendship 
with  each  other  for  their  common  defence,  the 
security  of  their  liberties,  and  their  mutual  and 
general  welfare." 

Not  only  did  the  people  actually  make  this 
great  charter,  in  which  they  gave  to  the  gov- 
ernment they  established  over  them  the  powers 
it  has,  but  they  declared  in  the  very  beginning 
that  it  was  "  we,  the  people,"  and  not  their  State 
governments,  that  made  it,  and  they  also  de- 
clared its  perpetuity.  It  is  "  We,  the  People  of 
the  United  States,  in  order  to  form  a  more  per- 
fect union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  to  secure  the 
blessings  of  liberty  to  ourselves  and  our  pos- 
terity, do  ordain  and  establish  this  Constitution 
for  the  United  States  of  America."  Here  is 
the  express  declaration  that  it  is  for  perpetuity, 
not  for  the  people  making  it,  but  for  those  suc- 
ceeding them,  for  their  posterity,  for  all  time. 

When,  after  the  civil  war,  the  question  of  the 
legality  of  secession  came  before  the  Supreme 
Court  of  the  United  States,  in  the  case  of  the 
State  of  Texas  against  White,1  Chief-Justice 
Chase,  apparently  overlooking  this  explicit  state- 
ment, in  delivering  the  opinion  of  the  court,  said: 
"  That  by  the  articles  of  the  Confederacy,  the 

1  7  Wallace  Reports,  p.  700. 


NATIONALITY  OF  THE   CONSTITUTION.        35 

union  of  the  States  was  solemnly  declared  to  be 
perpetual,  and  when  these  articles  were  found  to 
be  inadequate  to  the  exigency  of  the  country,  the 
Constitution  was  ordained  to  form  a  more  per- 
fect union,"  and  asks,  "  what  can  be  more  indis- 
soluble if  a  perpetual  union  made  more  perfect 
is  not  ?  " 

Neither  the  Chief  Justice  nor  those  dis- 
tinguished jurists,  Justice  Swayne1  and  Justice 
Bradley,11  controverted  the  right  of  secession 
when  the  case  came  before  them,  in  the  manner 
that  Chief-Justice  Marshall  treated  constitu- 
tional questions.  They,  however,  declared  in 
the  most  emphatic  terms  that  there  could  be  no 
secession,  that  the  Union  was  an  indissoluble 
one  of  indestructible  States  by  the  very  pro- 
visions of  the  Constitution  itself. 

If  we  examine  the  provisions  of  the  Constitu- 
tion, we  find  in  the  first  clause  is  declared  the 
perpetuity  of  the  Union  ;  in  the  last  clause, 
excepting  that  setting  forth  it  shall  be  estab- 
lished on  the  ratification  by  nine  States,  is 
stated  in  language  that  cannot  be  mistaken,  its 
supremacy  over  States  and  State  constitutions. 

It  is  by  its  very  terms,  we,  the  people,  do 
ordain  and  establish  this  Constitution,  that  is 
the  great  charter  giving  powers  to  our  new 
government,  and  it  is,  therefore,  we,  the  people 
of  every  State,  who  declare  that  this  Constitu- 
tion, this  government,  and  the  laws  and  treaties 

1  In  case  of  White  vs.  Hart,  13  Wallace,  646. 
3  Keith  vs.  Clark,  97  United  States  Reports,  476. 


36"  NULLIFICATION,    SECESSION. 

made  under  it  "  shall  be  the  supreme  law  of  the 
land  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  constitution 
or  laws  of  any  State  to  the  contrary  notwith- 
standing." There  is  no  qualification  that  if 
we  do  not  deem  them  legal  we  can  treat  them 
as  null  and  void. 

In  order  to  secure  and  maintain  that  suprem- 
acy the  people  who  made  it  require  that  the 
United  States  Senators  and  Representatives, 
"  and  members  of  the  several  State  Legislatures, 
and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  States,  shall 
be  bound  by  oath  or  affirmation  to  support 
this  Constitution  "  ;  stamping,  as  on  its  coins,  its 
authority  over  States  and  every  State  officer. 

Now  when  the  people  of  each  and  every 
State  did  "ordain  and  establish"  a  new  form 
of  government  which  was  to'  be  supreme  over 
the  constitution,  that  is  the  government  of 
their  particular  State,  and  imposed  upon  every 
legislative,  executive,  and  judicial  officer  of 
their  own  State  an  oath  to  support  that  govern- 
ment, where  is  the  right  of  a  State  to  question  ? 
Over  what  is  the  United  States  supreme  if  not 
over  States  ?  Why  should  an  oath  have  been 
required  to  support  that  supremacy  over  State 
governments  unless  to  make  that  supremacy 
certain,  and  resistance  to  or  question  of  it 
criminal  ? 

Those  who  made  and  established  the  govern- 
ment knew  of  the  oath  that  is  required  by 


NATIONALITY  OF  THE   CONSTITUTION.        37 

State  governments  of  their  officers  to  support 
their  constitutions,  and  they  would  not  have 
required  this  additional  oath  if  the  two  oaths 
could  have  conflicted,  or  if  there  could  have 
been  any  doubt  that  the  obligations  required 
by  a  State  government  were  to  be  subordinated 
to  the  supreme  powers  and  laws  of  the  general 
government. 

Then  to  prevent  the  government  from  being 
encroached  upon  by  the  States  the  judicial 
power  was  given  to  the  United  States  over  all 
cases  arising  under  this  Constitution,  the  laws 
of  the  United  States,  its  treaties,  and  cases 
affecting  ambassadors,  etc.  So,  as  Webster 
declared,  no  State  law  or  judicial  decision  of  a 
State  could  interfere.  By  this  clause  the 
United  State?  courts  had  the  right,  which  they 
have  uniformly  and  very  often  exercised,  from 
the  beginning  of  our  government  until  this  day, 
of  taking  from  the  jurisdiction  of  the  State 
courts  all  and  every  case  in  which  the  construc- 
tion of  a  United  States  law  came  in  question  or 
where  the  legality  of  the  act  of  any  United 
States  official  was  concerned. 

We  have  seen  that  the  supremacy  of  the 
United  States  over  all  States  and  State  laws 
and  the  right  to  maintain  that  supremacy 
through  its  own  courts  and  by  its  own  officers 
was  fully  established  by  the  Constitution.  If 
we  examine  further  the  powers  granted  to  the 
general  government  by  this  Constitution,  we 
find  all  that  can  be  called  sovereign  :  those  of 


38  NULLIFICATION,    SECESSION. 

intercourse  with  foreign  nations,  of  war  and 
peace,  of  raising  and  keeping  an  army  and 
navy,  of  the  currency,  of  commerce  external 
and  internal,  of  establishing  post-offices  and 
post-roads,  and  fixing  the  standard  of  weighty 
and  measures,  the  exclusive  right  of  making 
citizens  by  naturalization,  the  regulating  and 
command  of  the  militia  when  in  its  service,  and 
issuing  of  copyrights  and  patents,  the  making 
of  all  laws  necessary  and  proper  for  carrying 
into  execution  the  granted  powers  and  all  other 
powers  vested  by  the  Constitution  in  the  govern- 
ment of  the  United  States  or  in  any  depart- 
ment or  office  thereof,  with  prohibitions  to  the 
States  from  entering  into  any  treaty,  alliance, 
or  confederation  with  another  State  or  foreign 
power,  making  agreements  or  compacts  with 
other  States,  keeping  an  army  or  war  vessels 
in  the  time  of  peace,  or  making  laws  impair- 
ing the  obligation  of  a  contract,  and  ex  post 
facto  law,  coining  money,  emitting  bills  of 
credit — that  is  making  a  paper  currency  (the 
issuing  of  paper  had  been  carried  to  an  excess  by 
the  States  and  the  Continental  Congress  during 
the  Revolution),  and  laying  imposts  or  duties  on 
imports  or  exports.1  There  is  no  sovereignty 
remaining  to  a  State  that  has  granted  all  these 
powers  to  the  government  over  it,  and  is  so 
restricted  in  its  acts,  and  cannot  even  make  an 

1  See  Constitution  of  United  States,  Article  I.,  Sections  8,  9, 
and  10,  for  statement  of  granted  powers  and  restrictions  on 
States. 


NATIONALITY  OF   THE   CONSTITUTION.        39 

agreement  or  a  compact  with  a  sister  State. 
Indeed,  Calhoun,  in  his  argument,  seemed  hard 
pushed  to  specify  any  sovereign  powers  left  to 
the  States,  when  he  mentioned  that  the  States 
.had  the  power  to  appoint  the  officers  of  the 
militia  and  that  Pennsylvania  had  undertaken 
to  punish  treason. 

Though  the  United  States  alone  have  those 
supreme  powers,  which  by  political  writers  are 
generally  called  sovereign,  the  word  sovereign 
has  been  also  used  by  American  writers  and 
politicians  in  reference  to  the  powers  of  a  State. 
The  people  of  every  State  have  supreme  powers 
over  their  own  local  affairs,  their  own  territory 
and  citizens  where  the  power  has  not  been  given 
to  the  United  States ;  they  can  enact  laws 
making  the  penalty  of  stealing  a  pocket-hand- 
kerchief or  smoking  on  the  street  punishable 
with  death  and  carry  them  into  effect.  If  they 
were,  however,  to  make  such  laws  to  take  effect 
for  past  acts,  the  United  States  would  interfere, 
because  no  State  can  make  an  ex  post  facto  law. 
So,  in  our  separate  States,  a  town  or  a  county 
can  run  a  road  through  anybody's  land  and  the 
State  cannot  interfere ;  because  the  people  of 
the  State  have  given  that  authority  to  the  town 
or  county.  A  Board  of  Health  in  many  States 
can  stop  one's  factory,  destroy  his  business,  or 
close  his  house,  by  reason  of  its  being  delete- 
rious to  the  general  health,  and  there  is  no 
appeal.  In  these  matters  the  town  or  county 
or  Board  of  Health  have  supreme  powers  in 


40  NULLIFICATION,    SECESSION. 

their  jurisdiction  ;  but  however  supreme  or  how- 
ever arbitrary  they  may  be  in  their  jurisdiction, 
they  cannot  extend  them  beyond — these 
supreme  local  powers  are  not  sovereign  powers. 

It  is  a  large,  local,  internal  government  that 
each  State  has  over  its  territory,  and  the  prop- 
erty and  the  acts  of  its  citizens  in  that  territory. 
The  General  Government  in  our  extensive 
domain,  having  in  addition  to  the  powers  it  now 
has  those  of  the  States,  would  from  the  over- 
whelming mass  of  its  duties  be  a  failure. 

Indeed,  we  find  that  from  necessity  Great 
Britain  is  on  the  path  of  giving  to  her  three 
kingdoms  greater  powers  of  local  government. 
If  one  examines  the  bill  for  home  rule  for 
Ireland,  proposed  in  1886  by  the  Gladstone 
administration,  he  will  find  that  the  powers  it 
proposed  to  give  to  Ireland  are  far  beyond  those 
our  separate  States  have.  Ireland,  besides  the 
right  of  taxing,  was  empowered  to  levy  duties 
of  customs  and  excise — that  is,  the  right  of  pro- 
tecting her  own  manufactures  to  the  injury  of 
England's.  Ireland  was  to  pay  over  specified 
contributions  to  the  British  Government,  some 
millions  of  pounds  annually,  for  her  proportion 
of  the  interest  on  the  national  debt,  and  of  the 
cost  of  the  support  of  the  army  and  navy,  and 
other  expenses.  If  there  were  a  failure  in  these 
contributions  the  General  Government  would 
have  been  obliged  to  use  coercion — a  civil 
war — a  policy  considered  fatally  objectionable 
in  the  convention  that  made  our  Constitution. 


NATIONALITY  OF   THE   CONSTITUTION.        41 

Ireland  also  was  to  lose  her  representation  in 
the  Imperial  Parliament. 

As  far  as  secession  is  concerned,  the  most  im- 
portant provision  in  the  Constitution  is  Section 
3,  of  Article  III.,  concerning  treason.  There 
is  no  such  thing  as  treason  except  where  alle- 
giance is  due.  The  citizen  of  an  independent 
sovereign  State  owes  his  allegiance  to  it,  and 
not  to  a  confederacy  or  a  league  the  State  has 
joined.  There  can  be  no  treason  except  against 
a  government  proper.  The  establishing  by  the 
Constitution  of  the  punishment  of  treason, 
implies  the  nationality  of  the  Union,  and  that 
every  inhabitant  of  its  domain  is  a  citizen.  In 
the  articles  of  the  old  Confederacy  there  was  no 
punishment  of  treason ;  on  the  contrary,  each 
State  agreed  in  those  articles  to  deliver  up  to  its 
sister  States  any  one  that  it  might  claim  had 
committed  treason. 

The  first  part  of  the  two  clauses  of  Section  3 
are  "  Treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  them  aid  and 
comfort,"  and  "  The  Congress  shall  have  the 
power  to  declare  the  punishment  of  treason." 

The  peculiarity  of  the  introduction  of  this  first 
clause  is  to  be  noticed :  it  is  taken  for  granted 
that  there  is  treason  against  the  United  States, 
and  that  it  is  expedient  to  limit  it.  The  found- 
ers of  our  new  government  did  not  intend  to 
have  rash  speech,  or  plots,  or  mere  resistance  to 
its  authority  punishable  as  the  high  crime  of 


42  NULLIFICATION,    SECESSION. 

treason.  They  knew  from  the  experience  of 
their  mother  country  the  danger  to  personal 
liberty  from  constructive  treason;  so  they 
limited  the  power  to  punish  that  offence,  and 
gave  it  only  in  case  of  levying  of  war,  or  aiding 
and  adhering  to  enemies. 

It  has  been  claimed  by  many  writers  North 
as  well  as  South,  that  admitting  secession  to 
be  illegal,  the  United  States  had  no  authority 
to  use  force  against  a  seceding  State.  At  the 
foundation  of  all  government  must  be  the  right 
to  maintain  itself,  and  by  force  when  necessary. 
There  is  no  need  of  the  declaration  of  this 
right.  The  establishment  of  a  government 
implies  the  power  to  compel  the  obedience  of 
its  subjects. 

This  power  in  the  government  to  punish  as 
treason  the  levying  of  war  against  it  applies 
directly  and  expressly  to  a  State,  or  a  combi- 
nation of  States,  or  a  part  of  a  State  levying 
war.  A  foreign  state,  an  enemy  levying  war, 
cannot  commit  treason.  Its  subjects  owe  no 
allegiance.  Nor  does  a  riot  or  a  mob  levy  war. 
This  making  the  levying  of  war  treason  was 
intended  for  powers  within  the  National  Gov- 
ernment, like  States  and  combination  of  States 
and  parts  of  States.  It  was  against  some  power 
that  should  have  the  organization  and  ability 
to  levy  or  wage  war;  and  the  word  levying  is 
far  reaching  and  extends  beyond  mere  righting. 
It  could  not  have  been  intended  for  anything 
else  than  coercing  such  powers. 


NATIONALITY  OF   THE   CONSTITUTION.        43 

That  this  law  was  understood  to  reach  a 
citizen  of  a  State  resisting  the  authority  of  the 
United  States  is  clearly  shown  by  the  letter  of 
Luther  Martin,  a  distinguished  jurist,  and  also 
the  Attorney-General  of  Maryland,  and  after- 
wards a  leader  of  the  bar  in  the  United  States 
Courts,  and  who  as  a  lawyer  was  accustomed  to 
consider  the  meaning  of  instruments  like  the 
Constitution.  In  this  letter  to  the  Legislature 
of  Maryland  objecting  to  the  ratification  of  the 
Constitution,  he  declares  that  this  clause  was 
kept  for  the  purpose  of  coercing  a  State.  He 
wrote :  "  The  time  may  come  when  it  shall  be 
the  duty  of  a  State  in  order  to  preserve  itself 
from  the  oppression  of  the  General  Government 
to  have  recourse  to  the  sword  ;  in  which  case, 
the  proposed  form  of  government  declares,  that 
the  State,  and  every  one  of  its  citizens  who 
acts  under  its  authority,  are  guilty  of  a  direct 
act  of  treason,"  and  a  citizen  is  thus  put  in  the 
dilemma  of  being  exposed  to  punishment, 
either  by  the  State  or  the  United  States,  how- 
ever he  may  act.  To  prevent  this,  he  writes, 
he  offered  an  amendment  that  acts  done 
under  the  authority  of  one  or  more  States 
should  not  be  deemed  treason  or  punished  as 
such ;  but  this  provision  was  not  adopted.1 

The  interference  of  the  United  States  with  a 
State  is  expressly  directed  by  another  clauss  in 
the  Constitution,  that  by  which  the  United 
States  is  obliged  to  protect  a  State  against 

1  Martin's  Letter,  Elliot's  Debates,  vol.  I.,  pp.  382,  383. 


44  NULLIFICATION,    SECESSION. 

domestic  violence  and  guarantees  to  put  down 
any  government  if  it  be  not  republican.  There 
is  no  limit  to  this  guaranty  and  it  is  no  matter 
if  the  unrepublican  government  be  established 
by  a  majority  or  unanimity  of  votes. 

A  sovereign  government  seldom,  if  ever, 
allows  itself  to  be  sued,  and  never  gives  the 
decision  of  a  suit  against  itself  or  between 
itself  and  other  governments  to  another  juris- 
diction. That  is  a  direct  surrender  of  sover- 
eignty. The  Constitution  as  originally  adopted, 
gave  to  the  United  States  judicial  power  in 
controversies  to  which  the  United  States  shall 
be  a  party,  in  controversies  between  two  or 
more  States,  between  a  State  and  citizens  of 
another  State  and  between  a  State  and  foreign 
states,  citizens,  or  subjects.  The  jurisdiction 
in  suits  by  individuals  against  a  State  was 
afterwards  taken  away  by  the  passage  of  an 
amendment  to  the  Constitution,  leaving  how- 
ever jurisdiction  in  controversies  to  which  the 
United  States  shall  be  a  party  and  between  two 
or  more  States  and  a  foreign  State.  The  fact, 
however,  remains,  that  the  Constitution  as 
formed  and  as  adopted  by  the  original  States, 
(all  that  can  claim  to  have  been  sovereign),  did 
give  jurisdiction  to  the  United  States  over  all 
claims,  even  those  of  individuals  out  of  the  State 
against  the  State,  as  if  the  State  had  no  more 
political  importance  than  a  county  or  a  town. 

A  yet  more  important  clause  in  the  Consti- 
tution shows  conclusively  the  supremacy  and 


NATIONALITY  OF   THE   CONSTITUTION.        45 

national  character  of  the  government ;  namely 
that  giving  it  the  power  of  changing  and  ex- 
tending its  authority  to  whatever  extent  it 
chooses  by  amendments,  provided  they  are 
accepted  by  the  Legislatures  of  three  quarters 
of  the  States.  By  amendments  made  in  this 
manner  the  United  States  can  take  whatever 
authority  it  pleases  from  the  States.  It  can 
give  its  government  a  veto  over  the  laws  of  the 
separate  States,  appoint  the  executive  officers 
of  a  State — powers  proposed  in  the  convention 
that  made  the  Constitution.  The  only  limit 
in  the  Constitution  to  the  extension  of  the 
government's  power  by  amendments  is  that 
no  State  without  its  consent  could  be  deprived 
of  its  equal  suffrage  in  the  Senate,  and  the 
importation  of  slaves  until  1808  should  not  be 
prohibited.  Under  this  provision  the  General 
Government,  with  the  concurrence  of  three 
fourths  of  the  Legislatures  of  the  States,  has 
an  authority  that  no  State  government  has. 
None  of  the  State  constitutions  grant  its  Legis- 
lature the  right  to  extend  its  powers  over 
counties,  cities,  and  towns ;  it  must  go  to  the 
people  for  that. 

How  can  it  be  said  that  sovereignty  remains  in 
a  State,  when  it  gives  to  its  associates  the  right 
to  make  all  its  laws  if  only  three  quarters  of 
them  so  elect  ?  The  granting  by  a  community 
of  power  to  a  government  over  it  to  control  it, 
as  it  pleases,  takes  away  the  very  foundation  of 
sovereign  right ;  and  objection  was  made  to 


46  NULLIFICATION,    SECESSION. 

this  clause  for  this  very  reason.  In  the  conven- 
tion Elbridge  Gerry,  a  prominent  delegate  from 
Massachusetts,  afterwards  Governor  of  that 
State  and  Vice-President  of  the  United  States, 
objected  because  the  Constitution  is  paramount 
to  the  State  constitutions,  and  that  two  thirds 
of  the  States  may  introduce  innovations  that 
would  subvert  the  State  constitution  altogether.1 
It  is  by  the  power  given  in  this  clause,  that 
after  the  war  of  secession  slavery  was  abolished 
through  the  acceptance  by  the  States  of  amend- 
ments to  that  effect.  The  proclamation  of  Lin- 
coln abolishing  slavery  in  the  States  in  insurrec- 
tion on  January  I,  1863,  did  not  give  liberty  to 
the  slaves  in  Delaware,  Maryland,  Missouri  and 
Kentucky,  and  parts  of  other  States,  that  were 
not  in  rebellion.  Many,  perhaps  all,  of 
these  States  abolished  slavery  before  the  amend- 
ments were  passed. 

The  only  authority  given  by  the  Constitution 
to  States  is  this  power  of  amending  it  by  the 
concurrence  of  State  Legislatures  in  proposi- 
tions made  by  the  Congress  of  the  United  States 
or  the  Legislatures  of  three  fourths  of  the  States, 
and  also  the  right  of  equal  representation  in 
the  Senate,  and  that  in  the  election  of  President 
the  vote  is  by  electors  appointed  in  such  manner 
as  the  State  Legislature  may  direct. 

1  5  Elliot,  p.  530.  The  clause  was  altered  so  that  the  ratifi- 
cation of  three  fourths  of  the  Legislatures  of  the  States  was  re- 
quired, though  two  thirds  of  the  States  can  call  a  new 
convention,  and  two  thirds  of  Congress  propose  amendments 
to  the  Constitution. 


NATIONALITY  OF   THE   CONSTITUTION.        47 

The  provisions  forbidding  a  State  from  emit- 
ting bills  of  credit,  passing  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts,  are  a  restriction  that  sovereign 
nations  would  never  have  submitted  to. 

When  a  foreigner  becomes  a  citizen,  he  ab- 
jures his  allegiance  to  his  native  country,  and 
the  oath  he  takes  is  before  a  United  States 
officer  to  the  United  States,  not  to  the  State  in 
which  he  is  naturalized.  Finally,  by  the  Consti- 
tution the  President  is  made  the  commander-in- 
chief  of  the  army  and  navy  of  the  United 
States,  and  of  the  militia  of  the  several  States. 
While  an  oath  or  affirmation  is  required  of 
every  Senator  or  Representative,  of  every  exec- 
utive and  judicial  officer  of  the  United  States 
and  of  every  State,  to  support  the  Constitution, 
the  President  alone — the  one  having  the  su- 
preme military  power  over  all  forces  on  land 
or  sea — must  swear  or  affirm  that  he  will  faith- 
fully execute  the  office,  and  "  to  the  best  of  my 
ability,  preserve,  protect,  and  defend  the  Con- 
stitution of  the  United  States  " ;  not  to  keep 
from  encroachment  upon  the  rights  of  the 
States,  but  to  preserve,  protect,  and  defend  the 
Constitution.  Can  it  be  said  that  it  is  not 
to  be  preserved  over  its  citizens  and  States  that 
are  in  arms  to  subvert  or  resist  its  laws  and 
supremacy  ? 

Jefferson,  in  the  time  of  the  Confederacy, 
when  the  States  were  neglecting  to  pay  the 
requisitions  made  of  them,  recommended  that 


48  NULLIFICATION,    SECESSION. 

the  Continental  Congress  should  show  its  teeth 
and  send  a  frigate  into  the  ports  of  a  delinquent 
State  ;  but  the  new  Constitution  intended  to 
draw  the  teeth  of  the  States  by  prohibiting  them 
from  keeping  troops  or  ships  of  war  ;  and  it  re- 
served to  the  national  government  the  right  "  to 
raise  and  support  armies  "  ;  "  to  provide  and 
maintain  a  navy  "  ;  and  gave  it  the  power  of 
"calling  forth  the  militia  to  execute  the  laws  of 
the  Union,  suppress  insurrection,  and  repel  in- 
vasion." Thus  the  Constitution  added  to  the 
supremacy  of  the  new  government  the  power  to 
enforce  it,  and  took  from  the  States  the  power, 
as  far  as  it  could  consistently  with  freedom,  of 
resistance. 

The  government  of  the  Confederacy  depend- 
ed, upon  the  several  State  governments,  their 
soldiers,  and  their  contributions  ;  it  had  no  direct 
control  over  the  people  ;  from  the  failure  of  the 
State  government  to  make  the  required  contri- 
butions and  enforce  its  decrees  it  was  fast  fall- 
ing into  total  inefficacy.  We  have  shown  that 
the  new  government,  established  by  the  people 
of  each  State  over  themselves  and  the  people 
of  the  other' States,  had  by  its  Constitution  all 
the  powers  necessary  for  a  national  government, 
and  State  governments  were  prohibited  from 
the  exercise  of  conflicting  powers  ;  that  waging 
war  against  that  government  was  treason,  thus 
affirming  that  they,  the  people  of  each  State 
who  established  it,  owed  allegiance  and  were 
subjects  of  the  government ;  they,  the  people, 


NATIONALITY  OF   THE   CONSTITUTION.        49 

also  declared  in  the  Constitution,  that  the  judi- 
ciary of  their  general  government  should  have 
authority  over  every  case  and  question  arising 
under  its  laws  and  acts  ;  further,  they  gave  that 
judiciary  and  the  government  the  power  to  en- 
force their  laws  and  the  authority  over  every 
individual  in  its  domain  ;  and  finally  they  ex- 
pressly declared  the  supremacy  of  the  govern- 
ment and  its  laws  over  all  State  laws  and  State 
constitutions. 

The  departments  of  the  government  estab- 
lished by  the  Constitution  are  three  in  number: 
the  Legislative  (Congress),  to  make  the  laws  and 
to  pass  the  acts  for  the  carrying  it  on  ;  the  Execu- 
tive (the  President  and  the  officers  under  him),  to 
administer  it,  to  carry  into  effect  its  laws  and 
acts,  and  represent  it  in  its  dealings  with  other 
countries ;  and  thirdly  the  Judiciary,  to  decide 
upon  all  controversies  arising  under  the  laws 
and  acts  of  the  government. 

A  department,  however,  in  some  instances 
has  an  authority  in  the  others  ;  the  President, 
the  chief  executive  officer,  has  the  right  of  veto, 
and  his  principal  appointments,  especially  those 
of  the  judiciary  and  foreign  ministers,  are  sub- 
ject to  the  approval  of  the  Senate. 

The  power  of  the  United  States  Judiciary 
Department  to  pass  upon  the  constitutionality 
or  validity  of  laws  made  by  the  Legislature,  is 
one  unknown  to  the  unlimited  imperial  power 
of  the  Parliament  of  Great  Britain,  and  has  been 
a  source  of  perplexity  to  the  writers  and  legis- 


50  NULLIFICATION,    SECESSION. 

lators  of  that  country,  and  of  question  recently 
in  the  House  of  Commons.  The  question  can- 
not arise  and  never  comes  before  the  judiciary 
of  that  government,  whether  a  law  is  within 
the  parliamentary  power.  With  us,  however, 
the  question  often  arises,  and  the  judiciary 
decides  whenever  question  is  made  as  to  whether 
a  law  is  within  the  powers  granted  by  the  Con- 
stitution. In  all  our  States  the  State  judiciary 
has  the  same  power  to  decide  on  the  constitu- 
tionality of  the  laws  and  acts  of  the  State 
government. 

This  system  of  giving  the  judiciary  the  right 
to  define  the  extent  of  the  powers  of  the 
government  has  with  us  met  with  almost  uni- 
versal approval. 


CHAPTER  III. 

THE  CONSTITUTIONAL  CONVENTION  INTENDED 
NATIONALITY. 

LET  us  now  retrace  our  steps  and  see  what 
took  place  in  the  convention  that  made  the 
Constitution,  and  what  those  that  made  it 
intended.  Fortunately  we  have  the  journals 
of  the  convention  that  framed  the  Constitution ; 
the  minutes,  until  he  left,  of  Mr.  Yates,  a  dele- 
gate from  the  State  of  New  York ;  and  Madison's 
full  and  careful  report  of  all  the  proceedings, 
debates,  and  votes.  From  these  sources  we  shall 
see  that  the  makers  intended,  and  that  they 
considered  they  had  made,  a  perpetual,  consoli- 
dated, National  Government. 

The  convention  was  called  to  amend  the 
articles  of  the  confederacy,  and  to  it  were  sent 
most  of  the  distinguished  men  of  the  country. 
The  State  of  Virginia  took  an  early  and  import- 
ant part  in  the  formation  of  the  new  government. 
Before  the  meeting  of  the  convention,  Madison 
wrote  to  Edmund  Randolph,  one  of  the  dele- 
gates, that  it  would  be  well  for  him  to  pre- 
pare some  propositions  from  Virginia,  he  in  his 
letter  suggesting  what  they  should  be.  Imme- 
51 


52  NULLIFICATION,    SECESSION. 

diately  after  the  organization  of  the  convention 
after  the  choice  of  Washington  as  the  presiding 
officer  and  the  establishing  of  standing  rules, 
Randolph  introduced  a  series  of  resolutions, 
which  had  been  considered  by  his  colleagues 
and  were  known  in  the  convention  as  those  of 
Virginia.  They  were  in  substance,  that  the 
articles  of  confederation  should  be  corrected  and 
enlarged  ;  that  the  rights  of  suffrage  in  the 
national  Legislature  ought  to  be  proportioned  to 
the  quotas  of  contribution,  or  to  the  number  of 
free  inhabitants ;  that  the  Legislature  should 
consist  of  two  branches,  the  first  branch  to  be 
elected  by  the  people  of  every  State  ;  that  the 
Legislature  should  have  supreme  rights  with 
coercive  power  against  any  member  failing  to 
perform  its  duty,  and  that  there  should  be  a 
national  Executive  and  Judiciary. 

These  resolutions  were  referred  to  the  next 
meeting.  At  that  meeting  Randolph,  at  the 
suggestion  of  Gouverneur  Morris,  who  said  that 
his  subsequent  resolutions  did  not  agree  with 
the  first,  moved  that  this  first  resolution,  which 
was  that  the  articles  of  confederation  should  be 
corrected  and  enlarged,  should  be  postponed, 
which  was  unanimously  agreed  to.  Randolph 
then  proposed  three  other  resolutions,  the  first 
two  that  a  union  merely  federal  and  treaties 
between  the  States  as  sovereigns  would  be 
insufficient.  The  convention,  after  debate  and 
other  propositions,  considering  the  first  two 
resolutions  unnecessary,  passed  the  third,  which 


NATIONALITY  INTENDED.  53 

was :  "  That  a  National  Government  ought  to  be 
established  consisting  of  a  supreme  legislative, 
executive,  and  judiciary."  All  the  States  present 
voted  ay,  Connecticut  only  no,  New  York 
divided — Hamilton  ay,  Yates  no.1  Yates  in  his 
minutes  says  Randolph  in  first  proposing  his 
resolutions,  "  candidly  confessed  they  were  not 
intended  for  a  federal  government ;  and  that  he 
meant  a  strong  consolidated  union."  Mr.  Morris 
on  the  3Oth  observed  that  Randolph's  preamble 
as  to  amending  the  articles  of  the  confederacy 
was  unnecessary,  as  the  subsequent  resolutions 
would  not  agree  with  it." 

The  votes  in  the  convention  were  as  in  the 
confederacy,  each  State  had  one  and  voted  as  a 
whole.  If  the  delegation  of  a  State  was  equally 
divided,  its  vote  was  lost. 

By  the  I3th  of  June  the  Virginia  resolutions 
had  been  considered  and  passed  with  changes 
and  amendments,"  the  first  resolution  as  changed, 
being  that  a  national  government  ought  to  be 
established  ;  the  plan  as  to  representation 
(Resolves  7  and  8),  being  that  the  representation 
in  the  two  branches  of  the  Legislature  should  be 
in  accordance  with  the  free  population  and 
three  fifths  of  all  other  persons  (slaves),  and  ex- 
cepting Indians. 

Further  action  on  this  report  was  deferred  to 
June  I4th  at  the  request  of  Mr.  Patterson,  who 


1  5  Elliot,  132-34. 

*  I  Elliot,  391  and  392.     Yates'  minutes. 

*  5  Elliot,  189-90  states  the  resolutions. 


54  NULLIFICATION,    SECESSION. 

then  offered  a  plan  called  that  of  New  Jersey, 
formed  by  the  deputations  of  Connecticut, 
New  York,  New  Jersey,  and  Delaware,  preserv- 
ing the  articles  of  the  confederation,  one  Legis- 
lature, the  equal  vote  of  each  State,  but 
revising,  correcting,  and  enlarging  the  conferred 
powers  so  as  to  render  them  "  adequate  to  the 
exigencies  of  government  and  the  preservation 
of  the  Union."  In  the  resolutions  the  Execu- 
tive, if  any  State  or  any  body  of  men  in  the 
State  should  oppose  the  execution  of  the  acts 
or  treaties  of  the  government,  was  to  call  forth 
the  power  of  the  States  to  enforce  and  compel 
an  obedience.1  The  ratification  was  to  be  by 
the  Legislatures  of  the  States  ;  that  of  the  Vir- 
ginia plan  was  to  be  by  the  people.  The 
objection  that  the  delegates  to  the  convention 
were  exceeding  their  authority,  which  was  only 
to  amend  the  articles  of  the  confederation,  was 
again  brought  up  ;  the  discussion  whether  the 
government  should  be  national  or  a  con- 
federacy was  again  renewed.  It  was  pointed 
out  as  a  fatal  objection  by  Madison,  Hamilton 
(who  then  spoke  for  the  first  time),  and  others, 
that  under  a  confederacy  the  coercing  of  a 
State  to  pay  its  quota  or  compelling  it  to  obey 
would  in  fact  be  a  civil  war,  where  the  militia 
of  other  States  would  have  to  march  against 
the  delinquent  power.  Hamilton  said  he  nei- 
ther liked  the  Virginia  nor  the  New  Jersey 
plan ;  he  praised  the  constitutional  monarchy 
1 5  Elliot,  192,  sixth  resolve. 


NATIONALITY  INTENDED.  55 

of  Great  Britain  as  the  most  perfect  govern- 
ment. He  was  particularly  opposed  to  Pat- 
terson's plan,  "  being  fully  convinced  that  no 
amendment  of  the  confederation  leaving  the 
States  in  possession  of  their  sovereignty  could 
possibly  answer  the  purpose."1  He  stated 
the  plan  he  should  prefer :  a  general  gov- 
ernment, with  an  executive  and  a  senate  for 
life  or  good  behavior,  the  general  government 
to  have  the  appointment  of  the  governors  of 
each  State,  who  should  have  a  veto  over  the 
State  laws.*  He  wished  the  States  abolished  as 
States,  but  admitted  the  necessity  of  their  hav- 
ing subordinate  jurisdiction.'  He  was  aware  that 
others  did  not  approve  of  his  plan,  nor  would 
they,  he  thought,  of  that  of  Virginia,  but  they 
might  finally  come  to  it.  He  thought  univer- 
sal suffrage  a  bad  principle  of  government.  He 
apparently  did  not  know  how  strongly  the 
democratic  feeling  existed  amongst  the  people 
of  this  country ;  nor  perhaps  appreciate  the 
strength  of  a  government  that  has  at  its  back 
the  will  and  brute  power  of  the  majority  of 
fighting  men,  as  shown  in  our  civil  war.  He 
made  that  unfortunate  speech,  afterwards  used 
against  him,  that  the  people  were  getting  tired 
of  an  excess  of  democracy,  "  and  what  is  even 
the  Virginia  plan  but  pork  still,  with  a  little 
change  of  the  sauce"  * 

1 5  Elliot,  199. 

*  See  his  plan,  5  Elliott,  205.  8  5  Elliot,  212. 

4  Elliot,  423  ;  also  5  Elliot,  p.  206  note. 


56  NULLIFICATION,    SECESSION. 

As  no  one  seconded  Hamilton's  plan  and  he 
did  not  urge  it,  the  question  before  the  con- 
vention was  between  Mr.  Patterson's  plan  en- 
larging the  power  of  the  confederacy  or  the 
national  one  of  Virginia.  The  former,  after 
much  debate,  was  laid  aside,  only  New  York 
and  New  Jersey  voting  no.  The  Virginia  res- 
olutions were  taken  up  again  by  a  vote  of  seven 
States  ay,  to  three  nay,  Maryland  divided, 
which  was  a  vote,  so  Madison  says,  that  they 
"  should  be  adhered  to  as  preferable  to  those 
of  Mr.  Patterson."  ' 

That  the  word  national  was  dropped  from 
the  resolutions  of  Virginia  has  been  dwelt  upon 
by  Southern  writers,  and  by  Calhoun  at  length 
in  his  speech  of  1833,  as  a  proof  that  the  na- 
tional idea  was  abandoned.  No  such  conclusion 
can  be  drawn  from  the  way  in  which  it  was 
done.  On  June  2Oth,  the  day  after  the  Virginia 
resolutions  were  again  taken  up  and  adopted, 
the  first  resolution  being  before  the  House,  Mr. 
Ellsworth  moved  it  should  read :  "  That  the 
government  of  the  United  States  ought  to  con- 
sist of  a  supreme  legislative,  executive,  and 
judiciary."  This  alteration,  he  said  would  drop 
the  word  national  and  retain  the  proper  title," 
"The  United  States."  Mr.  Randolph  said  he 
did  not  object,  and  it  was  unanimously  acqui- 
esced in. 

The  second  resolution,  that  the  Legislature 
should  consist  of  two  branches,  was  taken  up. 
1  5  Elliot,  212. 


NATIONALITY  INTENDED.  $f 

Mr.  Lansing  moved  instead,  that  "legislation 
be  vested  in  the  United  States  in  Congress," 
and  again  urged  a  confederacy.  On  this  George 
Mason,1  to  whom  Mr.  Lodge  refers,  said  he  did 
not  expect  this  point  to  be  re-agitated,  and  com- 
pared a  national  government  to  a  confederate 
one.  He  spoke,  "  with  horror,"  of  the  necessity 
that  the  latter  would  have  of  collecting  its  taxes 
by  compulsion  over  States,  of  marching  the 
militia  of  one  State  against  another  to  enforce 
taxes ;  rebellion  was  the  only  case  where  military 
force  should  be  exerted  against  citizens.  In 
the  early  days  of  the  convention  he  had  urged 
that  the  new  government  should  be  one  over 
individuals  not  States.  He  would  not,  how- 
ever, abolish  the  State  governments  or  render 
them  absolutely  insignificant.  This  second 
resolution  was  carried  seven  States  to  three, 
Maryland  divided.* 

The  next  resolution,  that  the  first  branch  of 
the  Legislature  should  be  elected  by  the  people, 
was  supported  by  Mason,  and  Wilson  said  he 
considered  it  the  corner-stone  of  the  fabric ;  only 
New  Jersey  voted  against  it,  Maryland  divided. 

On  the  resolution  of  how  the  second  branch 
of  the  Legislature  should  be  elected — by  the 
State  Legislature  or  the  people, — Virginia  voted 
that  it  should  be  by  the  people.* 

That  the  representation  in  the  first  branch 
should  be  in  proportion  to  the  people  was 

1  5  Elliot,  216,  217.  *  5  Elliot,  223. 

*  5  Elliot,  240  and  note. 


58  NULLIFICATION,    SECESSION. 

established.  Then  June  2gth  began  the  great 
controversy  in  the  convention  of  how  the 
representation  should  be  in  the  second  branch, 
whether  in  proportion  to  population  or  by 
State. 

When  this  discussion  took  place,  the  three 
great  States  were  Virginia,  Massachusetts,  and 
Pennsylvania.  Virginia  then  comprised  the 
territory  which  is  now  West  Virginia  and  Ken- 
tucky, and,  including  her  slaves,  had  the  largest 
population.  Massachusetts,  instead  of  being 
insignificant  in  territory,  had  the  large  area  of 
Maine,  which  was  made  into  a  separate  State  in 
1820.  Massachusetts  had  the  largest  white 
population  and  had  furnished  more  soldiers 
than  any  other  State  in  the  Revolution  ;  and 
it  was  probably  for  this  reason  that  Madison 
alluded  to  it  as  the  most  powerful  State.  New 
York  had  then  about  the  same  population  that 
Connecticut  and  Maryland  had,  and  from  ap- 
parent want  of  foresight  as  to  its  future  great 
and  immediate  increase  in  population  and 
power  took  a  prominent  part  with  the  smaller 
States  that  wished  representation  should  be  by 
an  equal  vote  in  both  branches  of  the  new 
Legislature.  The  representatives  of  Connecti- 
cut, Sherman  and  Ellsworth,  were  also  strenu- 
ously in  favor  of  equality  of  States.  Ellsworth, 
in  reply  to  Madison's  attack  on  Connecticut 
for  refusing  compliance  to  federal  requisitions, 
excused  his  State  by  reason  of  her  distress  and 
impoverishment  by  her  exertions  during  the 


NATIONALITY  INTENDED.  59 

revolutionary  war,  and  asserted  that  the  muster 
rolls  will  show  she  had  more  troops  in  the  field  in 
the  revolutionary  war  than  even  Virginia,  and  he 
appealed  to  the  presiding  officer,  Washington, 
as  to  the  truth  of  his  statement.1  Georgia,  then 
estimated  to  be  the  smallest  in  population,  trust- 
ing to  the  future  settlement  of  its  claimed  large 
territory  extending  from  the  sea-coast  to  the 
Mississippi,  usually  voted  with  the  larger  States.1 
Mr.  Bedford,  of  Delaware,  asserted  that  South 
Carolina,  puffed  up  with  the  possession  of  her 
wealth  and  negroes,  and  North  Carolina  were 
both  united  with  the  great  States,  and  for  the 
smaller  States  threatened,  "sooner  than  be 
ruined,  there  wet  foreign  powers  who  will  take  us 
by  the  hand."8  For  this  he  was  very  justly 
rebuked  by  Rufus  King,  of  Massachusetts.  It 
was  hard  for  the  smaller  States  having  an  equal 
vote  in  the  Confederacy  to  change  it  for  one 
proportioned  to  inhabitants.  It  was  estimated 
that  Delaware  would  have  but  one  representa- 
tive in  each  branch  to  Virginia's  sixteen.  The 
argument  of  the  smaller  States  was  that 
Virginia,  Massachusetts,  and  Pennsylvania 
would  combine  to  crush  the  other  States. 
Madison  replied  that  their  interests  were  so 
different  there  was  no  fear  of  this.  Mas- 
sachusetts' product  was  fish  ;  Pennsylvania's, 
flour;  Virginia's,  tobacco.  He  predicted  that 

1 1  Elliot,  469, 

•See  estimates,  Note  160,  5  Elliot,  598. 

8 1  Elliot,  472. 


6O  NULLIFICATION,    SECESSION. 

the  struggle,  when  it  came,  would  be  between 
the  Southern  States  with  their  interests  as 
exporters  and  the  Northern  commercial  States. 
The  opinion  was  pretty  generally  entertained 
that  any  division  that  might  arise  would  be 
between  North  and  South. 

The  dispute  between  the  greater  and  smaller 
States  was  finally  settled  by  the  provision  that 
all  money  bills  should  originate  in  the  first 
branch  of  the  Legislature,  that  direct  taxation 
should  be  in  proportion  to  representation  in 
that  branch,  and  that  there  should  be  an  equal 
representation  in  the  upper  House,  the  vote 
however  being  per  capita  and  not  by  States. 
The  final  vote  on  this  settlement  was  almost 
unanimous,  only  one  State,  Maryland,  in  the 
negative.1 

It  has  been  argued  by  Davis,  Stephens,  and 
others,  that  this  equal  representation  of  the 
States  in  the  Senate  was  an  establishment  of  a 
confederacy,  and  it  has  been  a  stumbling-block 
in  the  way  of  many  constitutional  commenta- 
tors who  have  considered  it  a  compromise  be- 
tween a  national  and  a  confederate  government. 
It  is  a  compromise  of  the  right  of  representation 
in  one  branch  only  of  the  legislative  department 
of  the  government ;  but  it  is  no  compromise  in 
the  powers  granted.  The  powers  granted  to  the 
government  are  of  supremacy,  legislative,  exec- 
utive, and  judicial,  over  State  and  State  consti- 
tutions and  State  judiciaries.  If  there  had 
1  5  Elliot,  357. 


NATIONALITY  INTENDED.  6 1 

been  rotten  boroughs  established  by  the  Consti- 
tution like  those  then  in  Great  Britain,  if  Dela- 
ware and  Rhode  Island  had  been  given  double 
the  representation  that  Virginia  had,  or  if  every 
slave  of  the  South  had  counted  for  two  white 
men  in  the  free  States,  the  granted  powers  of 
the  government  would  have  been  none  the  less 
supreme  and  national,  as  the  Constitution  itself 
declares,  and  as  they  in  reality  are.  Scotland 
is  not  a  sovereign  nation  because  her  peers 
elect  twelve  of  their  number  to  the  House  of 
Lords  of  the  government  of  Great  Britain. 
Oxford  and  Cambridge  Colleges  are  not  sover- 
eign powers  because  they  choose  representa- 
tives to  the  House  of  Commons.  Charles 
Pinckney  of  South  Carolina  with  reason  said  : 
"  Give  New  Jersey  an  equal  vote  and  she  will 
dismiss  her  scruples  and  concur  in  the  national 
system." 

The  other  resolutions  of  Virginia,  except 
those  relating  to  an  executive,  had  been  acted 
upon,  when  Elbridge  Gerry  of  Massachusetts 
moved,  that  "the  proceedings  of  the  conven- 
tion for  the  establishing  of  a  national  govern- 
ment "  "  be  referred  to  a  committee  to  prepare 
and  report  a  Constitution  ";  a  committee  of  five 
was  agreed  upon,  no  one  objecting,1  no  one  de- 
nying that  the  government  was  a  national  one. 
From  the  23d  to  the  26th  of  July  the  plan  of 
the  Executive  was  considered  and  settled,  and 
was  unanimously  referred  to  the  Committee  of 
1  5  Elliot,  357. 


62  NULLIFICATION,   SECESSION. 

Detail,  that  of  five  already  appointed  to  pre- 
pare and  report  the  Constitution.  The  conven- 
tion adjourned  until  August  6th,  to  give  the 
necessary  time  to  their  committee.  The  re- 
solves then  passed  are  stated  in  Elliot's 
Debates? 

The  first  was,  that  the  government  of  the 
United  States  ought  to  consist  of  a  supreme 
legislative,  judiciary,  and  executive.  The  second, 
third,  fourth,  and  fifth  were  the  resolves  as  to 
the  two  branches  of  the  Legislature.  The  sixth 
was :  "  Resolved,  that  the  national  Legislature 
ought  to  possess  the  legislative  rights  vested  in 
Congress  by  the  Confederation ;  and  moreover 
to  legislate  in  all  cases  for  the  general  interests 
of  the  Union,"  etc.,  etc. 

In  the  I2th,  I3th,  i/jth,  I5th,  i6th,  2Oth,  and 
23d — the  last,  the  executive,  the  legislative,  the 
judiciary,  and  the  government  were  termed  na- 
tional. These  are  the  resolutions  passed  by 
the  convention,  all  declaring  the  government 
and  every  branch  of  it  was  national.  This  was 
the  plan  agreed  on ;  no  changes  were  made 
except  of  detail  and  for  euphony,  and  some 
modifications. 

On  August  6th  the  Committee  of  Detail 
reported  the  Constitution  ;  a  printed  copy  was 
furnished  to  each  member.11  The  preamble 
was,  "  We,  the  people  of  the  States  of  New 
Hampshire,  Massachusetts,"  then  follow  the 

1  5  Elliot,  374-6. 

9  Copy  of  Constitution  as  reported,.  5  Elliot,  376-81. 


NATIONALITY  INTENDED.  63 

names  of  all  the  other  States,  "  do  ordain,  de- 
clare, and  establish  the  following  Constitution 
for  the  government  of  ourselves  and  our 
posterity." 

"Article  I.  The  style  of  the  government 
shall  be  the  United  States  of  America." 

"Article  II.  The  government  shall  consist 
of  supreme  legislative,  executive,  and  judicial 
powers." 

By  Article  X.  the  executive  was  vested  in  a 
president,  to  hold  his  office  for  seven  years,  but 
not  re-eligible,  whose  title  was  to  be  "  His 
Excellency." 

It  will  be  noticed  that  the  preamble  had  the 
declaration  of  perpetuity,  that  we,  the  people, 
made  it  for  "  our  posterity." 

The  Constitution  was  then  taken  up  by  its 
separate  articles,  and  they  were  minutely  and 
thoroughly  discussed  and  somewhat  altered. 
Each  was  again  passed,  taking  all  the  time  from 
the  /th  of  August  until  September  I2th. 

The  definition  of  treason  was  considered  at 
great  length,  and  in  the  debate  it  was  shown 
that  States  might  punish  for  acts  against  their 
authority  under  the  name  of  treason  or  under 
other  names.  Madison  thought  the  definition 
too  narrow ;  Mason  was  in  favor  of  extending  the 
definition  and  adopting  the  statute  of  Edward 
III.1  The  record  of  the  convention  shows  this 
article  punishing  treason  was  unanimously 

1  5  Elliot,  447. 


64  NULLIFICATION,    SECESSION. 

agreed  to,  notwithstanding  the  objection 
Luther  Martin  said  he  made.1 

The  supremacy  of  the  Constitution  and  the 
laws  of  the  United  States  over  the  States  and 
all  citizens  and  State  judiciary  was  passed,  no 
one  opposing,  August  23d.a 

The  provisions  relating  to  the  office  of  Presi- 
dent and  his  powers  and  duties  were  much  dis- 
cussed and  changed,  and  the  title  of  "  His 
Excellency  "  dropped. 

The  amended  draft  of  the  Constitution  was 
submitted  to  a  Committee  of  Style  and  Arrange- 
ment, of  which  Gouverneur  Morris  was  chair- 
man, and  they  changed  the  preamble  to,  "  We, 
the  people  of  the  United  States,"  from  that  of 
"  We,  the  people  of  New  Hampshire,"  etc.;  they 
inserted  the  words, "  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the 
blessings  of  liberty,"  retaining  that  it  was  to 
ourselves  and  our  posterity,  that  we  do  ordain 
and  establish  this  Constitution  of  the  United 
States  of  America.  It  has  been  argued  and 
strenuously  claimed  that  this  change  to  "  We,  the 
people  of  the  United  States,"  was  one  made  for 
euphony  at  the  end  of  the  session  of  the  con- 
vention, and  has  no  force  as  a  declaration 
that  it  was  made  by  the  people.  But  it  will  be 

1  5  Elliot,  451.  Article  VII.,  Sec.  2,  was  then  agreed  tonem- 
con. 
8  5  Elliot,  467. 


NATIONALITY  INTENDED.  65 

seen  it  took  the  place  of  one  as  explicit,  one 
declaring  it  was  by  the  people  of  every  State 
and  for  themselves  and  posterity.  It  was  neces- 
sary to  drop  the  name  of  each  State,  as  the 
Constitution  was  to  be  obligatory  only  on  the 
people  of  those  States  adopting  it.  This  change 
was  not  objected  to  by  any  one.  The  conven- 
tion considered  this  final  draft  from  the  I2th  to 
the  1 7th  of  September,  and  made  some  changes, 
when  it  was  signed  by  all  the  delegates  present 
except  four. 

The  members  of  the  convention  evidently 
had  studied  for  the  occasion  and  were  learned 
in  the  history  of  leagues  and  governments ;  they 
referred  to  Montesquieu,  to  Holland,  Swiss 
Cantons,  United  Netherlands,  Poland,  Amphic- 
tyonic  Conference,  Archaean  and  Lycian 
Leagues,  the  Germanic  body,  and  to  Germany, 
from  which  the  general  principles  of  govern- 
ment came. 

There  was  a  diversity  of  opinion  in  the  con- 
vention about  the  durability  of  the  Union.  Its 
rapid  increase  in  population,  its  future  great- 
ness in  territory  (for  the  members  believed  in 
the  acquisition  of  the  Mississippi  to  its  mouth), 
were  foreseen  and  spoken  of  by  many. 

Some  there  were  who  thought,  with  the  ex- 
treme difficulty  of  communication  and  inter- 
course, not  knowing  how  steam  navigation  and 
the  railroad  would  almost  annihilate  distance, 
that  it  would  be  impossible  to  keep  such  an 
immense  territory  and  people  together.  Others 


66  NULLIFICATION,    SECESSION. 

congratulated  themselves  as  the  founders  of 
a  great  empire.  Sherman  of  Connecticut,  on 
the  question  of  limiting  the  number  of  new 
States  to  be  admitted,  from  the  fear  of  their 
controlling  the  old  thirteen,  replied  :  "  We  are 
providing  for  our  posterity,  our  children  and 
grandchildren,  who  are  as  likely  to  be  citizens 
of  new  Western  States  as  of  the  old  States."  l 
No  one  suggested  any  dissolution  by  claim  of 
right  of  secession. 

When  the  supremacy  and  nationality  of  the 
intended  government  were  settled,  Yates  and 
Lansing  (who  with  Hamilton  formed  the  dele- 
gation from  New  York)  on  July  3d  left  the 
convention,  and  in  their  letter  to  Governor 
Clinton,"  stated  that  they  did  so  because  they 
were  chosen  to  revise  the  Articles  of  the 
Confederation  and  that  the  principles  of  the 
Constitution  sanctioned  by  the  convention  met 
with  their  "  decided  and  unreserved  dissent," 
as  would  any  system  "  which  had  in  object  the 
consolidation  of  the  United  States  into  one 
government " ;  and  that  "  a  persuasion  that 
their  further  attendance  would  be  fruitless  and 
unavailing  rendered  them  less  solicitous  to 
return." 

We  find  after  equal  representation  in  the 
Senate  had  been  granted  to  the  smaller  States, 
that  their  delegates  took  a  prominent  part  in 
enlarging  and  strengthening  the  powers  of  the 
General  Government. 

.'  5  Elliot,  310.  *  I  Elliot,  480. 


NATIONALITY  INTENDED.  67 

Luther  Martin,  who  throughout  the  session 
of  the  convention  had  been  the  most  able  and 
persistent  opponent  to  a  national  government, 
expressed  his  dissatisfaction  at  the  close  and 
was  one  of  the  four  who  refused  to  sign.  The 
three  Southern  States,  North  and  South  Caro- 
lina and  Georgia,  as  was  stated  in  the  con- 
vention, had  exalted  opinions  of  their  future 
population,  and  had  been  often  on  the  side  of 
the  larger  States.  They  had  obtained  their 
wishes — representation  for  their  slaves,  the  right 
to  import  them  until  1808,'  the  prohibition  of 
export  duties  on  their  rice,  indigo,  and  tobacco, 
yielding  only  the  taxation  of  imports. 

General  Charles  Cotesworth  Pinckney  of 
South  Carolina,  towards  the  close  of  the  con- 
vention, expressed  the  satisfaction  of  the  South 
at  the  liberal  conduct  shown  to  them,  and  that 
it  was  for  the  interest  of  the  weak  Southern 
States  to  be  united  with  the  strong  Eastern 
States,  that  the  government  should  have  the 
power  of  making  commercial  regulations, 
and  that  though  he  had  had  his  prejudices 
against  the  Eastern  States,  "he  had  found 
them  as  liberal  and  candid  as  any  men  what- 
ever."* 

Washington,  the  presiding  officer,  who  had 
been  advised  by  his  best  friends  not  to  accept 
the  nomination  as  a  member  of  the  convention, 

1  Virginia  opposed  the  importation  of  slaves.     Mason  partic- 
ularly condemned  it.     5  Elliot,  458. 
» 5  Elliot,  489. 


68  NULLIFICATION,    SECESSION. 

and  who  from  a  sense  of  duty  assented  to  act, 
spoke  but  seldom. 

At  the  close  of  the  proceedings  he  urged  an 
amendment  that  removed  the  objections  of 
some  members,  which  was  agreed  to  unani- 
mously. 

Next  to  Washington,  Franklin  was  perhaps 
the  most  prominent  person  in  the  country. 
His  motions  and  suggestions  did  not  generally 
meet  with  the  approval  of  the  convention,  ex- 
cepting perhaps  in  reference  to  the  equality  of 
representation  in  the  Senate,  where  the  com- 
mittee appointed  under  his  resolutions  brought 
in  a  plan  for  a  settlement.  His  witty  remark, 
when  the  last  members  were  signing,  has  taken 
its  place  in  history.  Looking  towards  the  Pres- 
ident's chair,  at  the  back  of  which  a  rising  or 
setting  sun  had  been  painted,  he  observed  to 
those  around  him  that  painters  had  found  it 
difficult  to  distinguish  a  rising  from  a  set- 
ting sun,  that  during  the  session,  between  his 
hopes  and  fears  as  to  the  issue,  he  would  look 
at  the  sun  behind  the  President  and  could  not 
tell  whether  it  was  rising  or  setting,  but  now 
he  knew  that  it  was  a  rising  one.  Hamilton 
did  not  conceal  his  dislike  to  the  plan  adopted, 
but  promised  his  ardent  support.  His  strenuous 
labors  to  that  end  in  the  New  York  convention 
against  the  most  persistent  and  determined 
opposition  were  finally  crowned  with  success. 
Gerry  of  Massachusetts  refused  to  sign  ;  Gor- 
ham  and  Rufus  King — who  with  Gerry  had 


NATIONALITY  INTENDED.  69 

taken  active  parts  in  the  discussion, — together 
with  their  colleague,  Caleb  Strong,  signed. 
Madison  and  Blair  alone  signed  for  Virginia. 
Mason,  though  he  had  said  he  would  bury  his 
bones  in  the  city  rather  than  the  convention 
should  dissolve  without  doing  anything,1  and 
had  been  from  the  beginning  in  favor  of  a  na- 
tional government,  declined  to  sign  what  he 
had  been  so  instrumental  in  making  ;  because 
he  thought  the  great  power  given  to  the  Senate 
of  trying  impeachment,  of  making  treaties,  of 
appointing  ambassadors,  judicial  and  other  offi- 
cers, would  make  an  aristocracy  of  its  mem- 
bers. He  and  Randolph,  the  one  who  brought 
the  plan  forward,  thought  the  Constitution 
agreed  on  needed  amendment  and  wished  an- 
other convention.  One  cannot  help  thinking 
their  decision  might  have  been  different,  if 
Virginia  had  been  allowed  her  proposed  rep- 
resentation in  the  Senate  in  proportion  to 
population. 

We  have  already  stated  that  the  Constitu- 
tion was  sent  to  the  Congress  of  the  Confederacy 
and  by  them  submitted  to  the  State  Legis- 
latures, who  all  sanctioned  it  so  far  as  to  sub- 
mit it  to  conventions  chosen  by  the  people.  In 
each  and  every  State  the  coming  into  the  new 
government  was  ultimately  decided  by  the 
people,  and  not  by  the  State  government. 

In  many  of  the  States  the  adoption  of  the 
Constitution  was  pertinaciously  and  vehemently 
1  5  Elliot,  278. 


/O  NULLIFICATION,    SECESSION. 

opposed  on  the  ground  of  the  great  and  exces- 
sive powers  given  to  the  new  government,  that 
might  be  destructive  of  the  liberty  of  the 
people.  The  appointment  of  officers,  and  the 
power  of  the  President  with  his  command  of  an 
army  and  navy  in  peace  as  well  as  in  war,  the 
legislative  rights  of  Congress  with  an  unlimited 
right  of  taxation,  were  so  great  that  eminent 
and  prominent  men  expressed  their  belief  that 
the  government  would  end  in  a  despotism. 

In  Pennsylvania,  Wilson  at  great  length  ex- 
plained the  new  form  of  government,  stating 
"  that  by  adopting  this  system  we  become  a 
nation ;  at  present  we  are  not  one." 1  His 
labors  in  the  State  and  the  general  conventions 
have  been  fully  recognized  by  recent  writers. 

It  was  only  after  a  long  and  heated  discus- 
sion in  the  large  convention  of  the  then  impor- 
tant State  of  Massachusetts,  where  were  present, 
John  Hancock,  Fisher  Ames,  Rufus  King,  and 
Sam  Adams,  who  reluctantly  yielded  consent, 
that  the  Constitution  was  adopted,  the  majority 
in  favor  being  small. 

In  Virginia,  which  was  the  tenth  State  to 
come  into  the  Union,  Patrick  Henry,  who  had 
declined  the  appointment  to  the  general  conven- 
tion, objected  because  the  Constitution  said 
"  We,  the  people,"  instead  of  "  We,  the  States  "  ; 
and  if  the  States  be  not  the  agents  of  this  com- 
pact, it  must  be  one  great  consolidated  national 
government  of  the  people  of  all  the  States."* 

1  2  Elliot,  526.  *  3  Elliot,  22. 


NATIONALITY  INTENDED.  71 

"  It  had  an  awful  squinting  towards  monarchy." 
"  The  federal  convention  ought  to  have  amended 
the  old  system."  George  Mason  objected  be- 
cause the  Constitution  had  no  bill  of  rights  and 
would  end  in  a  monarchy  or  corrupt  oppressive 
aristocracy,  and  the  confederation  be  converted 
to  one  grand  consolidated  government.1  The 
acceptance  was  ably  argued  and  urged  by 
Madison  and  others  and  Edmund  Randolph, 
who  had  refused  to  sign,  but  had  since  come  to 
the  conclusion  that  the  only  chance  of  escape 
from  the  discredited,  crumbling  Confederacy 
was  in  adopting  the  new  Constitution.  He 
said  in  the  beginning  of  the  debate,  "  I  shall 
endeavor  to  make  the  committee  sensible  of 
the  necessity  of  establishing  a  national  govern- 
ment. In  the  course  of  my  argument  I  shall 
show  the  inefficacy  of  the  confederation." " 

The  acceptance  of  New  York,  her  territory 
dividing  the  Central  and  Southern  States  from 
the  Eastern,  was  considered  all  important. 
Her  ratification  of  the  Constitution  came  late. 
She  was  the  eleventh  State,  and  neglected  to 
vote  for  President  at  Washington's  first  elec- 
tion. 

John  Jay,  the  Minister  for  Foreign  Affairs  of 
the  Congress  of  the  United  States,  in  an  ad- 
dress to  the  people,  plainly  told  them  the  new 
government  was  national.  He  said  :  "  Friends 
and  Fellow-Citizens — The  convention  concurred 

1  See  Mason's  objections,  i  Elliot,  494,  also  Debates. 
*  3  Elliot,  64. 


72  NULLIFICATION,   SECESSION. 

in  opinion  with  the  people,  that  a  national 
government,  competent  to  every  national 
object,  was  indispensably  necessary."  ' 

Hamilton,  Jay,  Chancellor  and  other 
Livingstons,  Melanchthon  Smith,  and  a  number 
of  leading  citizens  were  members  of  the  con- 
vention. Yates  and  Lansing,  who  were  mem- 
bers of  the  general  convention  that  made  the 
Constitution,  and  Governor  George  Clinton 
strenuously  and  persistently  opposed  the  rati- 
fication, alleging  as  the  reason  the  danger  from 
the  great  powers  given  to  the  General  Govern- 
ment subverting  those  of  the  State. 

This  New  York  convention  for  a  long  time 
was  opposed  to  the  ratification.  Hamilton, 
who  was  exceedingly  zealous  for  it,  wrote 
almost  in  despair  to  Madison,  asking  if  a  State 
could  adopt  the  Constitution  conditionally  and 
afterwards  withdraw  from  the  Union  if  its  pro- 
posed amendments  were  not  adopted.  Madison 
replied,  that  "  a  conditional  ratification  did  not 
make  a  State  a  member  of  the  Union.  The 
Constitution  requires  an  adoption  in  toto  and 
forever.  It  has  been  so  adopted  by  the  other 
States.  An  adoption  for  a  limited  time  would 
be  as  defective  as  of  some  articles  only." 
Hamilton  did  not  question  the  correctness  of 
this  opinion  ;  but  New  York  was  brought  finally 
to  giving  her  consent.  Mr.  Lansing's  two 
motions  (which  show  that  he  thought  the 
Union  perpetual)  of  a  conditional  ratification 
1 1  Elliot,  496. 


NATIONALITY  INTENDED.  73 

with  a  bill  of  rights,  and  of  a  reservation  of  a 
right  to  withdraw  from  the  Union  after  a  cer- 
tain number  of  years  unless  the  amendments 
proposed  should  previously  be  submitted  to  a 
general  convention,  were  negatived  ; 1  a  similar 
conditional  acceptance  had  been  proposed  in 
the  Virginia  convention  and  abandoned. 

The  proceedings  in  most  of  the  conventions 
called  by  the  several  States  are  reported  in 
Elliot's  Debates.  In  none  of  them  was  the 
theory  advanced  or  suggested  that  a  State  had 
the  power  to  secede  from  the  government  or 
decide  as  an  independent  sovereignty  on  the 
validity  of  the  acts  or  laws  of  the  new  govern- 
ment. If  the  power  to  nullify  was  then  sup- 
posed to  exist,  if  the  right  of  a  State  to  leave 
at  its  will  was  thought  of,  why  was  it  not  then 
urged  that  nullification  and  secession  were  easy 
remedies  if  the  Union  should  be  or  become  op- 
pressive ?  No  one  imagined  that  there  was  any 
such  power  remaining  in  the  States.  No  one 
answered  to  the  alleged  fear  of  oppression  and 
tyranny  that  the  State  could  nullify  or  secede. 
Neither  friend  nor  foe,  as  Webster  said,  claimed 
either. 

On  all  occasions,  in  all  the  speeches,  it  was 
assumed  as  granted,  that  the  consolidation  of 
the  States,  as  it  was  termed,  was  national  and 
perpetual.  Even  in  South  Carolina  the  pro- 

1  2  Elliot,  412.  The  acceptance  was  passed  in  full  confidence 
that  the  bill  of  rights  proposed  by  New  York  would  be 
passed. 


74  NULLIFICATION,    SECESSION. 

ceedings  are  conclusive  on  this  point.  The 
Constitution  first  came  before  the  legislature 
on  the  question  of  submitting  it  to  the  people 
of  the  State.  Charles  Pinckney,  who  had  also 
been  a  very  prominent  member  of  the  general 
convention  that  made  the  Constitution,  said : 
"  He  repeated  that  the  necessity  of  having  a 
government  which  should  at  once  operate  upon 
the  people,  and  not  upon  the  States,  was  con- 
ceived to  be  indispensable  by  every  delegation 
present." ' 

The  question  whether  the  States  ever  had 
individual  sovereignty  arose  in  the  convention 
chosen  for  deciding  on  the  ratification  of  the 
Constitution,  and  General  Charles  C.  Pinckney0 
insisted  that  our  independence  came  from  the 
Declaration  of  Independence  made  by  the  Con- 
gress of  the  Confederacy,  wherein  in  the  name 
of  the  good  people  of  these  colonies  we  were 
declared  free  and  independent  States.  The 
separate  independence  and  individual  sover- 
eignty of  the  several  States  was  never  thought 
of,  not  even  mentioned  by  name  in  any  part  of 
it.  The  same  objection  in  South  Carolina  as  in 
other  States  to  the  Constitution  as  destructive 
of  liberty  was  made.  James  Lincoln,  a  delegate 
from  Ninety-six,  said  :  "  From  a  democratic  you 
are  rushing  into  an  aristocratic  government. 
Liberty  !  what  is  liberty  ?  The  power  of  gov- 
erning yourselves.  If  you  adopt  this  Constitu- 
tion have  you  this  power?  No;  you  give  it 

1  4  Elliot,  256.  3  4  Elliot,  301. 


NA  T10NA  LIT  Y  IN  TENDED.  7  5 

into  the  hands  of  a  set  of  men  who  live  one  thou- 
sand miles  distant  from  you."  ' 

The  words  of  ratification  of  the  States  are 
also  conclusive  on  these  points.  We  will  take 
the  three  important  States  whose  acceptance 
was  for  a  long  time  doubtful.  Massachusetts 
in  her  pious  and  reverential  ratification  used 
the  word  compact,  which  numerous  Southern 
writers,  Davis,  Stephens,  and  others,  bring  up 
as  proof  that  Massachusetts  considered  the 
Constitution  a  mere  confederacy  and  not  a 
government. 

To  refute  this  it  is  but  necessary  to  give  the 
very  words  used  : 

"  The  Convention,  acknowledging  with  grateful  hearts  the 
goodness  of  the  Supreme  Ruler  of  the  Universe  in  affording 
the  people  of  the  United  States,  in  the  course  of  his  providence, 
an  opportunity  deliberately  and  peaceably  without  fraud  or 
surprise  of  entering  into  an  explicit  and  solemn  compact  with 
each  other,  by  assenting  to  and  ratifying  a  new  constitution  in 
order  to  form  a  more  perfect  union,  .  .  .  do,  in  the  name  and 
behalf  of  the  people  of  the  Commonwealth  of  Massachusetts, 
assent  to  and  ratify  the  said  Constitution  for  the  United 
States  of  America." 

It  is  the  people  of  the  United  States,  not  the 
States,  nor  the  people  of  the  State  of  Massa- 
chusetts, that  enter  into  this  explicit  and  solemn 
compact  with  each  other  for  a  more  perfect 
union.  As  we  have  said  before,  a  compact  may 
be  for  a  national  government  or  for  a  confed- 

1 4  Elliot,  313.  The  objections  to  the  Constitution  came 
very  generally  from  the  interior  western  parts  of  the  State. 
They  were  so  in  Massachusetts,  Virginia,  and  New  York. 


76  NULLIFICATION,    SECESSION. 

eracy.  If  the  convention  understood  that  it 
was  States  making  a  confederacy,  they  would 
have  said  the  people  of  the  State,  and  not  the 
people  of  the  United  States. 

We  come  next  to  Virginia's  acceptance  of  the 
Constitution,  which,  to  Calhoun's  peculiar  mind, 
was  "  a  conditional  one."  "A  condition  made 
in  the  interest  of  all  the  States,  and  of  which 
any  State  could  avail." 

The  acceptance  was  made  "  in  behalf  of  the 
people  of  Virginia  "  ;  the  condition  was, "  that  the 
powers  granted  under  the  Constitution  being 
derived  from  the  people  of  the  United  States 
may  be  resumed  by  them,  whensoever  the  same 
shall  be  perverted  to  their  injury  or  oppression," 
and  that  "  among  other  essential  rights  the  lib- 
erty of  conscience  and  of  the  press  cannot  be 
cancelled,  abridged,  restrained,  or  modified  by 
any  authority  of  the  United  States." 

It  cannot  be  disputed  that  the  convention, 
by  this  acceptance,  understood  and  declared 
that  there  was  thence  but  one  nation  ;  they 
accept  the  government  in  behalf  of  the  peo- 
ple of  Virginia ;  they  acknowledge  that  the 
powers  are  derived  from  "  the  people  of  the 
United  States ";  and  add,  if  the  government 
be  perverted  to  the  injury  and  oppression  of 
the  people  of  the  United  States,  they,  the  people 
of  the  United  States,  may  resume  the  granted 
powers,  not  the  people  of  Virginia  or  the  State 
of  Virginia.  If  the  convention  understood  that 
they  were  making  a  compact  between  States  that 
were  to  retain  sovereignty,  or  the  right  to  with- 


NATIONALITY  INTENDED.  f] 

draw,  it  certainly  would  have  said :  if  the 
United  States  Government  be  perverted  to  the 
injury  of  the  States,  then  the  State  or  sovereign 
State  of  Virginia  or  the  people  of  the  State 
could  resume  the  powers  granted  by  her. 

Clinton  is  one  of  the  four  persons  whom  Mr. 
Lodge  cites  as  of  the  opinion  that  the  Union 
was  a  dissoluble,  precarious,  and  temporary 
affair.  The  letter  of  Madison  to  Hamilton — 
we  have  before  mentioned — in  relation  to  the 
perpetuity  of  the  Union  and  that  there  could 
be  no  conditional  acceptance,  is  well  known  to 
constitutional  writers  and  historians,  and  re- 
garded as  of  the  highest  authority  ;  but  the  more 
emphatic  and  decisive  declaration  of  the  con- 
vention of  New  York,  in  its  circular-letter  to 
the  governors  of  the  different  States,  signed  by 
Clinton,  its  President,  and  ordered  unanimously, 
seems  to  have  escaped  all  notice.  In  that  letter 
he  and  they  state  to  the  governor  of  each 
State  the  ratification  of  the  Constitution  by 
New  York  and  her  recommendation  of  certain 
amendments.  He  and  they  add,  none  of  these 
amendments  originated  in  local  views. 

"  Our  attachment  to  our  sister  States,  and  the  confidence 
we  repose  in  them,  cannot  be  more  forcibly  demonstrated 
than  by  acceding  to  a  government  which  many  of  us  think 
very  imperfect,  and  devolving  the  power  of  determining 
whether  that  government  shall  be  rendered  perpettial  in  its 
present  form  or  altered  agreeably  to  our  wishes  and  a  minority 
of  the  States  with  whom  we  unite."  ' 

1  Circular-letter  from  the  convention  of  New  York  to  the 
governors  of  the  several  States  of  the  Union.  Elliot's  Debates, 
vol.  ii.,  pages  413,  414. 


78  NULLIFICATION,    SECESSION. 

Can  anything  be  more  explicit  that  every  one, 
everywhere,  at  that  time  understood  the  Union 
was  perpetual,  than  this  unanimous  address  of 
the  convention  of  New  York  saying  so  to  all 
the  other  States,  and  the  submissive  request 
that  they  would  amend  the  Constitution  in 
accordance  with  their  wishes  ? 

The  conventions  of  Massachusetts,  Virginia, 
and  New  York  passed  resolutions  recommend- 
ing what  they  considered  important  necessary 
amendments  to  the  Constitution.  These  resolu- 
tions and  the  recommendations  of  other  States 
were  considered  in  the  first  Congress,  and  ten 
articles,  commonly  called  the  Bill  of  Rights,  were 
passed,  and  duly  ratified  by  the  legislatures 
of  the  States.  These  articles  are  safeguards 
against  the  feared  tyrannical  grants  that  had 
been  given,  and  are  all  restrictive  of  the  powers 
of  the  United  States  over  its-citizens,  not  of  its 
powers  over  States.  They  are  :  that  the  people 
should  have  the  right  of  petition  ;  and  "  a  well 
regulated  militia  being  necessary  to  the  security 
of  a  free  State,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed."  This 
shows  how  deep  and  serious  the  States  believed 
the  danger  to  be  from  the  great  powers  of  the 
General  Government  with  a  standing  army  and 
navy. 

Other  amendments  were,  that  no  law  should 
be  passed  abridging  the  freedom  of  speech  or 
of  the  press,  or  of  trial  by  jury  in  suits  at  com- 
mon law  where  the  amount  involved  exceeds 


NATIONALITY  INTENDED.  79 

twenty  dollars  ;  that  there  should  be  no 
established  religion,  and  matters  of  that  kind. 
None  of  these  ten  amendments  give  any  powers 
to  State  governments.  The  final  clause  reserves 
all  the  powers  not  granted,  "  to  the  States 
respectively,  or  to  the  people"  not  to  the  States 
and  their  people,  or  the  people  of  the  respective 
States ;  but  to  the  people,  putting  the  people 
as  a  whole. 

Great  stress  has  been  laid  by  Calhoun  and 
his  followers  on  this  clause,  as  giving  power  to 
the  States.  As  the  United  States  Govern- 
ment's sovereignty  is  undoubtedly  limited  to 
the  express  grants  of  the  Constitution,  the 
powers  not  granted  are  in  the  States  or  people. 
There  was  no  need  of  any  reservation,  except 
to  allay  the  fears  of  those  who  erroneously 
believed  that  the  Constitution  gave  unlimited 
power  to  the  Union. 

We  have  seen  that  in  the  discussions  in  the 
constitutional  conventions  it  was  denied  that 
any  separate  State  ever  had  or  exercised  sover- 
eign powers.  Judge  Story,  whose  authority 
is  as  great  as  that  of  any  legal  writer,  in  his 
commentaries  on  the  Constitution  maintains 
this  doctrine.  Many  of  our  earlier  historians 
concur  in  this. 

It  is  urged  that  originally  we  were  one 
people  of  different  colonies,  subjects  of  the 
British  Kingdom ;  our  independence  of  that 
kingdom  and  existence  as  a  power  came  from 
the  declaration  of  the  Congress  of  our  combined 


80  NULLIFICATION,   SECESSION. 

government,  in  which  we  are  called  one  people. 
No  State  ever  acted  separately  in  any  sover- 
eign capacity  ;  we  carried  on  the  war,  made 
peace,  and  treated  with  foreign  countries  as  one 
nation.  Even  territory  had  been  ceded  to  the 
Confederacy  by  the  several  States  ;  and  it  was 
the  Confederacy  that  passed  the  ordinance  of 
1787  abolishing  slavery  in  the  Northwest.  The 
States  had  declared  this  Confederacy  indissol- 
uble. Webster,  as  we  have  seen,  did  not  found 
his  argument  on  the  ground  that  the  States 
never  had  sovereignty ;  he  impliedly  admitted 
the  claimed  independence,  or  sovereignty  of 
the  States,  before  the  forming  of  the  Union  ; 
it  is  safer  to  make  this  concession  as  Webster 
did.  Each  State  had  its  choice  to  join  the 
Union  or  to  remain  apart  and  become  an  inde- 
pendent sovereign  power. 

Our  first  chief-justice,  John  Jay,  a  most 
eminent  jurist,  a  member  of  the  New  York 
convention,  and  one  of  the  writers  of  the 
Federalist,  in  his  decision  in  the  case  of  Chis- 
holm  against  the  State  of  Georgia,  where 
Georgia  denied  that  a  State  could  be  sued, 
very  clearly  states  how  our  government  was 
formed  and  where  the  sovereignty  is.  He  said : 
All  the  people  of  our  country  were  subjects, 
every  acre  of  land  was  held  by  grants  from  the 
Crown  of  Great  Britain  ;  the  sovereignty 
passed  from  the  Crown  to  the  people,  and  a 
confederation  of  States  was  established  as  the 
basis  of  a  general  government.  Then  the 


NA  TIONAL1T Y  INTENDED.  8 1 

people  of  the  country  made  a  new  government 
saying,  "  We,  the  people  of  the  United  States, 
do  ordain  and  establish  this  Constitution." 
Every  State  constitution  is  a  compact  between 
the  citizens  to  govern  themselves  in  a  certain 
manner,  and  the  Constitution  of  the  United 
States  is  likewise  a  compact  made  by  the  people 
of  the  United  States  to  govern  themselves  as 
to  general  objects  in  a  certain  manner.1 

It  has  often  been  asserted  and  apparently  is 
generally  believed,  that  in  the  lapse  of  time  the 
limited  authority  of  the  United  States  has  been 
gradually  extended,  national  powers  assumed, 
and  the  whole  fabric  of  government  changed. 
An  examination,  however,  of  the  laws  passed 
by  the  earliest  Legislatures  shows  a  very  liberal 
construction  of  the  granted  powers.  Madison 
was  a  leader  in  the  first  Congress,  he  was 
through  life  a  strict  constructionist  of  the 
extent  of  the  powers  given  by  the  Constitution. 
He  informs  us  that  no  one  doubted  in  that 
Congress  that  the  United  States  had  the  power 
of  levying  duties  for  protection."  The  want  of 
such  power  was  the  very  ground  on  which 
South  Carolina  passed  the  nullification  acts  of 
1832.  The  preamble  of  the  law  of  the  first 
Congress,  stating  that  the  duties  laid  were  for 
the  encouragement  and  protection  of  manu- 
factures, we  have  already  cited.  The  same  act 

1  See  2  Dallas  Reports,  p.  471,  for  opinion  in  full. 
9  Madison's  letter  to  Jos.  C.  Cabell  :  Consideration  No.  8. 
4  Elliot,  602. 


82  NULLIFICATION,    SECESSION. 

made  a  discrimination  in  favor  of  imports  of 
teas  from  China  and  India  direct  in  ships 
belonging  to  citizens  of  the  United  States,  al- 
lowed a  drawback  on  dried  and  pickled  fish 
and  salted  provisions  in  lieu  of  a  drawback  on 
the  salt  used  in  them.  In  the  third  session  of 
that  first  Congress,  an  excise  tax  was  laid  on 
distilled  spirits,  and  the  Bank  of  the  United 
States  was  incorporated — because  of  its  utility 
to  the  government  in  the  collection  and  trans- 
mitting of  its  revenue.  Carriages  were  taxed 
in  1794.  To  the  charter  of  the  bank  and  the 
carriage-tax  Madison  and  others  objected  as 
not  within  the  granted  powers.  Also  in  1794 
sales  of  wines  and  liquors  by  retail  and  sales 
by  auction  were  taxed.  And  Madison  himself 
introduced  a  bill  to  make  a  post-road  through 
the  whole  length  of  the  States  from  Maine  to 
Georgia. 

The  suit  before  referred  to  against  the  State 
of  Georgia,1  under  the  clause  giving  the  United 
States  Courts  jurisdiction  between  a  State  and 
citizens  of  another  State,  is  another  piece  of 
contemporary  history  and  the  strongest  pos- 
sible proof  what  was  the  understanding  of  that 
day.  Georgia  was  sued  by  a  citizen  of  South 
Carolina  in  a  simple  action  of  assumpsit,  the 
legal  term  for  a  suit  in  which  one  would  recover 
for  the  cost  of  a  pair  of  shoes  or  a  day's  wages, 
Georgia  refused  to  defend  the  claim  on  the 
ground  that  she  was  a  sovereign  State. 

1  2  Dallas  Reports,  419. 


NATIONALITY  INTENDED.  83 

The  case  came  before  the  full  bench  of  the 
Supreme  Court,  and  was  argued  for  the  plaintiff 
by  Edmund  Randolph,  then  Attorney-General, 
the  prominent  member  of  the  general  conven- 
tion and  that  of  Virginia,  who  stated  his  opin- 
ion strongly  against  this  claim  of  Georgia.  The 
decision  was  against  Georgia ;  Blair  and  Wilson, 
who  were  members  of  the  convention  that  made 
the  Constitution,  the  Chief-Justice  Jay,  and 
Cushing  giving  fully  reasoned  opinions.  Ire- 
dell  a  member  of  the  North  Carolina  Conven- 
tion, gave  a  dissenting  opinion ;  it  was  not 
because  he  held  that  Georgia  was  a  sovereign 
State  as  generally  stated.  He  said  as  to  sov- 
ereignty: "The  United  States  are  sovereign 
as  to  all  the  powers  of  government  actually 
surrendered ;  each  State  in  the  Union  is 
sovereign  as  to  all  the  powers  reserved." 
This  same  doctrine,  as  to  the  sovereignty  of 
a  State  in  unsurrendered  powers,  was  held  by 
Marshall.' 

The  reason  of  Iredell's  dissent  was  that  be- 
fore the  adoption  of  the  Constitution  a  State 
could  not  be  sued  ;  that  no  suit  now  could  be 
brought  against  a  State,  because  Congress  had 
not  made  a  law  providing  for  it.  Further,  he 
intimated  it  was  not  intended  by  the  Constitu- 
tion to  give  the  right  of  a  compulsory  suit 
against  a  State.  As  to  the  sovereignty  of  the 
United  States  in  the  powers  conferred  to  it, 
the  court  was  unanimous. 

1  Providence  Bank  vs.  Billings,  4  Peters,  514. 


84  NULLIFICATION,    SECESSION. 

In  the  same  suit,  Jay  and  Gushing  main- 
tained that  the  United  States  cannot  be  sued, 
a  dictum  since  followed,  though  the  Constitu- 
tion gives  jurisdiction  to  the  courts  where  the 
United  States  are  a  party. 

At  this  time  all  the  States  were  greatly  in- 
debted and  many  suits  were  instituted  against 
them,  the  United  States  Courts  maintaining  their 
jurisdiction  over  the  States.  The  alarm  was 
general,  and  to  quiet  the  apprehension  that 
was  so  extensively  entertained,  an  amendment, 
taking  from  the  United  States  judicial  power 
in  suits  against  a  State,  was  adopted  in  Con- 
gress and  afterwards  ratified  by  the  State 
Legislatures  in  1798.  That  its  motive  was  not 
to  maintain  the  sovereignty  of  a  State  from  the 
degradation  supposed  to  attend  a  compulsory 
appearance  before  the  tribunal  of  the  nation 
may  be  inferred  from  the  terms  of  the  amend- 
ment. It  left  jurisdiction  to  the  United  States 
of  controversies  to  which  the  United  States 
shall  be  a  party,  of  controversies  between  two 
or  more  States,  between  citizens  of  different 
States,  between  citizens  of  the  same  State 
claiming  under  grants  of  different  States.1 

Early  in  our  history,  in  the  second  adminis- 
tration of  Washington,  a  formidable,  armed, 
organized  resistance  was  made  to  the  enforce- 
ment of  the  excise  laws  of  the  General  Govern- 
ment in  the  western  portion  of  Pennsylvania, 

1  Chief-Justice  Marshall's  remarks  in  Cohens  vs.  Virginia,  6 
Wallace,  264. 


NATIONALITY  INTENDED.  8$ 

which  extended  into  a  part  of  Virginia.  It  was 
computed  that  there  were  sixteen  thousand 
men  capable  of  bearing  arms  in  the  district  in 
insurrection.  Washington  called  out  the  militia 
of  several  of  the  States  and,  as  Commander- 
in-chief,  suppressed  the  revolt.  The  march  of 
the  troops  was  fatiguing  and  long,  late  in  the 
fall,  in  rain  and  storms,  which  caused  much  suf- 
fering and,  in  the  end,  a  good  many  deaths. 
The  insurrection  was  crushed  by  the  power  of 
the  General  Government  with  promptness  and 
vigor,  much  to  the  satisfaction  of  Washington 
and  Hamilton  then  Secretary  of  the  Treasury  ; 
it  strengthened  the  government  and  the  admin- 
istration. Of  the  prisoners  tried  before  the 
United  States  Court  at  Philadelphia  two  were 
found  guilty  of  treason,  who  from  some  palli- 
ating circumstances  were  ultimately  pardoned 
by  the  President.1 

We  have  seen  what  were  the  opinions  of  the 
nature  of  the  new  government  held  by  Hamil- 
ton, Mason,  and  Clinton,  three  of  the  persons 
Mr.  Lodge  named.  There  can  be  no  doubt 
what  Washington's  was.  No  one  knew  better 
than  Washington,  what  a  miserable  condition 
the  States,  then  petty  in  population  and  poor 
in  resources,  would  be  without  a  strong,  indis- 
soluble Union.  Only  one  of  the  States,  Virginia, 
had  over  half  a  million  of  inhabitants,  nearly 
half  slaves ;  two  had  about  sixty  thousand. 

Washington,  long  before,  on  the  disbanding 

1  Hildreth's  History,  vol.  iv.,  p.  515. 


86  NULLIFICATION,    SECESSION. 

of  the  army  in  1783,  wrote  to  the  governors  of 
the  States  that,  according  to  the  policy  the 
States  should  adopt,  depended  whether  the 
revolution  was  a  blessing ;  and  he  put  "first" 
among  the  essential  requisites  "  an  indissoluble 
union  of  the  States  under  one  federal  head."1 
In  his  address  as  president  of  the  convention 
submitting  the  Constitution  to  the  Congress  of 
the  States,  he  said :  "  In  all  our  deliberations 
on  this  subject  we  kept  steadily  in  our  view 
that  which  appeared  to  us  the  greatest  interest 
of  every  true  American,  the  consolidation  of  the 
Union,  in  which  is  involved  our  prosperity,  fe- 
licity, safety,  perhaps  our  national  existence." 
In  his  farewell  address,  as  President,  to  the 
people  of  the  United  States,  in  no  less  em- 
phatic terms,  he  declared  the  importance  and  the 
success  of  the  Union.  He  said :  "  The  unity  of 
Government,  which  constitutes  you  one  people ',  is 
also  now  dear  to  you  ;  it  is  justly  so,  for  it  is  a 
main  pillar  in  the  edifice  of  your  real  indepen- 
dence— the  support  of  your  tranquillity  at  home, 
your  peace  abroad ;  of  your  safety  ;  of  your 
prosperity  ;  of  that  very  liberty  which  you  so 
highly  prize."  " 

We  have  before  stated,  that  at  the  institution 
of  our  government  there  was  a  great  fear  on  the 
part  of  a  portion  of  the  people  of  its  consolida- 
tion and  the  extension  of  its  granted  powers 
over  those  reserved  to  the  States  and  people. 

1  Eliot's  Manual  of  United  States  History,  266. 
'Sparks'  Washington,  vol.  xii.,p.  214. 


NATIONALITY  INTENDED.  87 

It  was  not  however  until  the  administration  of 
John  Adams,  about  ten  years  after  the  govern- 
ment had  gone  into  operation,  that  the  power 
of  a  State  to  pass  judgment  on  the  validity  of 
the  acts  of  the  United  States  was  suggested. 
Those  who  had  elected  Adams  as  President 
called  themselves  Federalists,  and,  as  is  natural 
in  those  controlling  the  government,  were  in 
favor  of  a  liberal  construction  of  its  powers. 
The  name  federal,  taking  its  Latin  derivation, 
refers  to  a  bond  uniting  states ;  that  bond  may 
be,  however,  that  of  a  confederacy  or  of  a  nation. 
Perhaps  it  was  a  misnomer  for  the  party  in 
favor  of  a  broad  national  construction  of  the 
Constitution.  The  name  has  come  into  use, 
however,  as  descriptive  of  our  government ;  it 
is  very  generally  called  the  Federal  Government. 
The  proposed  uniting  of  states,  like  the  British 
colonies  in  the  Pacific,  is  spoken  of  as  federal. 
Indeed  there  is  no  substantial  objection  to 
terming  any  sort  of  government  made  by  a 
constitution  or  agreement  federal. 

The  party,  at  that  time  of  our  history,  in 
opposition  to  the  Federal,  and  who  were  in 
favor  of  a  strict  construction  of  the  Constitu- 
tion, called  themselves  by  the  national  name 
of  Republicans.  When,  however,  they  came 
into  power  under  Jefferson,  they  were  no 
longer  strict  constructionists. 


CHAPTER  IV. 

KENTUCKY   AND   VIRGINIA   RESOLUTIONS. 

DURING  Adams'  administration  peace  had 
been  endangered  by  the  endeavor  of  foreigners 
to  embroil  the  country  in  the  war  then  raging 
in  Europe.  In  1798  the  Alien  Laws  giving  the 
power  to  the  President  to  expel  foreigners,  and 
the  Sedition  Law  punishing  seditious  acts  and 
libellers  of  the  government,  were  passed.  The 
constitutionality  of  these  laws  may  be  fairly 
questioned. 

Jefferson,  the  leader  of  the  party  in  opposi- 
tion to  those  in  power,  was  not  a  member  of 
the  convention  that  formed  the  Constitution, 
he  was  at  that  time  serving  the  country  in 
Europe.  He  was  exceedingly  disturbed  by  the 
Alien  and  Sedition  Laws,  and  has  generally 
been  held  as  the  instigator  and  author  of  the 
Kentucky  resolutions  condemning  them,  and 
asserting  the  right  of  nullification,  passed  by 
its  Legislature  in  November,  1798.'  The  Vir- 
ginia Assembly  soon  afterwards,  late  in  Decem- 
ber of  that  year,  passed  the  famous  resolutions 
so  much  relied  upon  by  those  claiming  the 

1  Two  drafts  of  the  resolutions  in  his  handwriting  were 
found  amongst  his  papers  and  are  published  in  his  writings. 


KENTUCKY  AND  VIRGINIA  RESOLUTIONS.     89 

right  of  nullification  and  secession.  Jefferson 
did  not  find  the  Legislature  of  Virginia  as  com- 
pliant as  that  of  Kentucky ;  and  the  resolves 
passed  by  Virginia  differ  fundamentally  from 
those  of  Kentucky. 

At  the  time  they  were  passed  little  notice 
was  taken  of  the  Kentucky  resolves,  owing 
undoubtedly  to  the  small  importance  of  the 
declarations  of  the  Legislature  of  a  State  just 
admitted  to  the  Union  with  but  few  inhabi- 
tants. Besides,  Kentucky  had  no  claim  to 
original  sovereignty.  She  owed  her  existence, 
the  right  of  government  over  her  territory,  and 
of  expressing  her  opinions,  to  the  privilege  the 
General  Government  had  given  her  to  become 
a  State.  How  with  any  decency  could  such  a 
State  claim  to  be  a  sovereign,  to  pass  judg- 
ment on  the  legality  of  the  laws  of  the  United 
States  from  whom  came  her  very  being  ? 

Then,  after  all,  resolutions  are  not  laws,  and 
these  resolutions  of  Kentucky  (and  the  same 
remark  applies  to  the  resolutions  of  all  other 
States  passing  judgment  on  the  laws  of  the 
United  States  declaring  them  null  and  void) 
are  merely  the  opinion  of  that  particular  Legis- 
lature that  passed  them,  a  sort  of  harmless 
suggestion  of  superior  wisdom.  There  is  no 
provision  in  any  of  our  State  constitutions 
authorizing  the  Legislature  to  give  such  opinions 
and  the  next  Legislature  may  pass  others  directly 
contradictory.  They  are  only  entitled  to  re- 
spect as  opinions,  as  would  be  the  opinion  of 


go  NULLIFICATION,    SECESSION. 

any  town  meeting  or  synod  of  clergymen  or 
assemblage  of  citizens. 

The  Kentucky  resolutions  declare,  and  it  was 
the  first  time  any  such  declaration  was  made, 
the  same  doctrine  that  Calhoun  and  Hayne 
subsequently  maintained ;  that  the  several 
States  are  united  by  compact,  under  the  style 
and  title  of  a  constitution,  in  a  general  govern- 
ment for  special  purposes,  and  when  the  General 
Government  assumes  undelegated  powers  its 
acts  are  void  and  of  no  force. 

Then  comes  the  doctrine,  that  this  govern- 
ment created  by  this  compact  is  not  the  exclu- 
sive or  final  judge  of  the  extent  of  the  powers 
delegated  to  it,  "  but  that,  as  in  all  other  cases 
of  compact  among  parties  having  no  common 
judge,  each  party  has  an  equal  right  to  judge 
for  itself,  as  well  of  infractions  as  of  the  mode 
and  measure  of  redress." 

Let  us  examine  this  reasoning  of  the  Ken- 
tucky resolutions.  It  is  that  the  States  are 
united  in  a  general  government  by  a  compact, 
called  a  constitution,  for  special  purposes,  and 
when  the  government  assumes  undelegated 
powers  its  acts  are  null  and  void.  There  is  no 
objection  to  calling  the  Constitution  a  compact 
for  special  purposes  only,  and  declaring  that 
the  government  under  it  has  no  right  to  assume 
not  granted  or  undelegated  powers,  and  that 
any  such  assumption  is  void  and  of  no  force. 

The  only  objection  to  this  first  clause  is  the 
ambiguity  in  the  declaration  that  the  several 


KEN  TUCK  Y  A  ND  VIRGINIA  RE  SOL  U  TIONS.     9 1 

States  are  united  by  compact.  The  Constitution 
may  be  called  a  compact ;  but  it  cannot  be 
denied  that  it  was  between  the  people  of  the 
different  States.  It  was  not  a  treaty  or  agree- 
ment made  by  the  State  Legislatures  or  State 
governments. 

In  the  second  clause  comes  the  objectionable 
clause,  that  the  government  created  is  not  the 
exclusive  or  final  judge  of  the  extent  of  the 
powers  delegated  to  it. 

We  have  already  set  forth  that  in  this  Con- 
stitution, or  compact,  which  is  declared,  by 
those  who  made  it,  supreme  over  all  constitu- 
tions and  laws  of  every  State,  that  all  cases 
arising  under  the  Constitution  or  laws  of  the 
United  States  shall  be  tried  by  its  judiciary.1 
Here  is  a  compact  by  the  people  of  the  several 
States,  that  when  any  questions  or  cases  arise 
the  United  States  Judiciary  shall  have  jurisdic- 
tion and  decide  upon  them.  The  parties  to 
this  compact  have  thus  expressly  made  that 
judiciary  the  final  judge  of  the  validity  of  the 
laws,  and  therefore  necessarily  of  the  extent  of 
power  delegated  to  the  government.  It  can- 
not be  denied  that  even  independent  sovereign 
nations  can  establish  a  tribunal  over  themselves 
by  arbitration  or  compact  that  shall  be  con- 
clusive. How  then  can  the  supremacy  of  the 
judiciary  of  the  United  States  be  questioned 
by  a  State,  whose  people  have  deliberately 
declared  the  United  States  Judiciary  supreme 
1  Article  III,  Sec.  i,  of  the  Constitution. 


92  NULLIFICATION,   SECESSION. 

over  the  State  constitution  and  laws,  and  that 
it  has  supreme  judicial  authority  over  all  cases 
arising  under  its  Constitution  and  laws. 

We  must  bear  in  mind  that  our  Constitution 
and  Government  would  have  been  an  absurdity 
and  a  failure,  if  every  State,  as  an  independent 
authority,  could  question  the  validity  of  a 
United  States  law  or  the  act  of  any  of  its  legal 
or  administrative  officers ;  four  and  forty  differ- 
ent State  judiciaries  to  decide  on  what  law  was 
valid  in  each  independent  sovereign  State  or 
Nation.  As  Webster  and  Chief-Justice  Mar- 
shall said,  and  Calhoun  admitted,  on  every 
constitutional  question  this  theory  of  nullifica- 
tion gave  as  many  vetoes  as  there  are  States. 

Admitting,  however,  for  the  argument,  that 
the  States  are  independent  sovereign  nations, 
this  nullification  doctrine  of  the  Kentucky 
resolutions  is  very  faulty.  It-  asserts  the  right 
of  those  who  deny  the  binding  obligation  of 
the  compact,  to  break  it ;  it  entirely  ignores 
the  right  of  the  other  parties,  even  when  of  the 
majority,  who  hold  to  a  different  construction, 
to  enforce  their  view.  In  all  compacts  or 
agreements  between  nations  there  is  the  right 
of  the  independent  sovereign  nations,  and 
emphatically  when  of  the  majority,  to  make 
another  independent  nation  perform  the  com- 
pact it  has  made.  The  majority  is  not  obliged 
to  yield  to  the  minority.  The  ultima  ratio,  the 
final  reasoning  of  nations  is  war,  and ,  the 
majority  certainly  have  that  right. 


KENTUCKY  AND  VIRGINIA  RE  SOL  UTIONS.     93 

Jefferson  himself  asserted  this  right  of  a  con- 
federacy to  coerce  a  State,  a  party  to  an  agree- 
ment, when  he  wrote  to  Cartwright  that  the 
Confederate  Congress  should  send  a  frigate  and 
compel  a  State  to  pay  its  quota.  Washington 
was  of  the  same  opinion,  when,  in  reference  to 
New  Jersey's  refusal  to  pay  her  contribution, 
he  wrote,  "  that  counties  in  Virginia  and 
Massachusetts  might  oppose  themselves  to  the 
laws  of  the  State  in  which  they  are,  as  an 
individual  State  can  oppose  itself  to  the  Federal 
Government." 

The  absurdity  of  the  Kentucky  resolutions* 
does  not  end  with  the  nullification  theory.  One 
would  imagine  the  dispute  would  have  been, 
who  did  not  write  them,  not  who  did.  By  the 
Constitution  certain  powers  are  given  to  Con- 
gress, and  the  authority  "  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers."  The 
power  to  punish  three  offences  only  is  men- 
tioned, but  that  Congress  had  the  power  to 
enact  all  laws  necessary  to  enforce  and  maintain 
its  authority  is  expressly  given,  and  never  had 
been  questioned  before  these  resolutions. 

The  authority  of  Congress  is  often  illustrated 
by  referring  to  the  power  given  "  to  establish 

1  Washington's  letter  to  Dr.  Win.  Gordon.  Bancroft's  His- 
tory of  the  Constitution,  vol.  i.,  p.  320,  Appendix. 

See  also  in  Jefferson's  Works,  letter  to  Madison,  April 
16,  1781,  approving  of  coercion  by  a  party  to  a  compact. 

*  Kentucky  resolutions,  4  Elliott,  540. 


94  NULLIFICATION,    SECESSION. 

post-offices  and  post-roads."  Under  this  brief 
grant,  Congress  has  passed  laws  punishing  the 
robbing  and  obstructing  the  mail,  and  breaking 
open  letters,  and  has  assumed  the  right  of 
taking  of  lands,  and  building  post-offices,  and 
doing  everything  requisite  for  protecting, 
transmitting,  and  distributing  mail  matter. 
Congress  has  also  passed  laws  punishing  the 
bribing  of  judges  and  of  obstructing  or  in  any 
way  interfering  with  judicial  processes.  In  fact, 
it  is  difficult  to  see  how  the  government  could 
go  on  without  these  powers  to  enforce  and 
maintain  its  authority.  But  this  Kentucky 
Legislature  resolved  that  Congress  had  only  the 
power  to  punish  treason,  counterfeiting  the 
securities  and  coin  of  the  United  States,  and 
piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  laws  of  nations ; 
because  the  power  to  punish  these  three  crimes 
was  alone  enumerated  in  the  Constitution. 
And  it  expressly  enumerated  two  acts,  one  the 
Sedition  Law,  and  the  other  an  act  to  punish 
forging  or  uttering  counterfeit  bills  of  the  Bank 
of  the  United  States,  "  and  all  other  their  acts 
( '  Congress ' )  which  assume  to  create,  define, 
or  punish  crimes  other  than  those  enumerated 
in  the  Constitution,  are  altogether  void  and  of 
no  force  "  ;  that  the  States  only  had  this  power 
each  in  its  own  territory. 

The  resolutions  also  arraigned  the  govern- 
ment for  the  sedition  and  other  acts  punishing 
crimes,  saying  "that  the  General  Government 


KEN  TUCK  Y  AND  VIRGINIA  RE  SOL  UTIONS.      95 

may  place  any  act  they  think  proper  on  the  list 
of  crimes  and  punish  it  themselves."  It  declared 
"that  these  and  successive  acts  of  the  same 
character  may  tend  to  drive  these  States  into 
revolution  and  blood."  It  will  be  noticed  that 
the  resolutions  make  no  claim  of  a  right  of 
secession.  The  use  of  the  words  revolution  and 
blood  implied  that  resistance  to  the  laws  would 
be  war. 

The  resolutions  also  arraigned  the  govern- 
ment for  the  Alien  Law,  calling  it  a  tyranny, 
and  asking  the  States  to  concur  with  them  in 
considering  that  the  acts  of  the  General  Govern- 
ment were  so  unconstitutional  that  they  amount 
to  an  undisguised  declaration  "that  the  com- 
pact is  not  meant  to  be  the  measure  of  the 
powers  of  the  General  Government,  but  that  it 
will  proceed  in  the  exercise  over  these  States  of 
all  powers  whatsoever";  and  they  ask  the 
States  that  they  will  concur  in  declaring  these 
laws  void  and  of  no  force,  and  in  requesting 
their  repeal.  The  resolutions  did  not  call  upon 
the  people  or  State  of  Kentucky  to  treat  these 
denounced  laws  as  null  and  void,  but  asked  the 
other  States  to  join  them  in  getting  Congress 
to  repeal  them. 

For  some  reasons  wholly  incomprehensible, 
these  nullifying  resolutions  of  Kentucky  and 
those  of  Virginia  have  been  seized  upon  and 
referred  to  by  late  writers  in  the  mistaken  belief 
that  they  were  the  same,  and  are  alike  declaratory 
of  the  right  of  a  State,  as  an  independent  sover- 


g6  NULLIFICATION,    SECESSION. 

eign  power,  to  treat  as  null  and  void  any  United 
States  law  it  deems  to  be  so,  and  with  appar- 
ently the  belief  that  they  were  concurred  in  to 
a  great  extent  at  the  time  of  their  adoption.1 

No  one  has  suffered  more  than  Madison  from 
this  error, — Madison,  justly  called  the  father  of 
the  Constitution,  who,  when  its  adoption  seemed 
to  depend  upon  the  acquiescence  of  New  York, 
and  that  State  hesitated  about  joining  the 
Union  and  proposed  to  make  a  conditional 
acceptance,  firmly  declared  an  acceptance  was 
absolute  and  perpetual,  who  in  No.  39  of 
the  Federalist,  the  work  written  for  the  purpose 
of  setting  forth  the  plan  of  the  new  government, 
was  no  less  explicit  on  the  question  of  nulli- 
fication, and  said :  "  It  is  true  that  in  con- 
troversies relating  to  the  boundary  between  the 
two  jurisdictions,  the  tribunal  which  is  ulti- 
mately to  decide  is  to  be  established  under  the 
general  government.  .  .  .  Some  such  tri- 
bunal is  clearly  essential  to  prevent  an  appeal 
to  the  sword  and  a  dissolution  of  the  compact, 
.  .  .  and  it  could  be  safely  established  under  the 
first  alone," — the  General  Government.  And 
who  later  in  1833  wrote  to  Webster  in  reference 
to  his  speech  in  answer  to  Calhoun  :  "  It  crushed 
nullification,  and  must  hasten  an  abandonment 
of  secession."3  His  biographers  speak  of  his 
double  dealing  in  this  matter,  and  even  Mr. 
Hare,  in  his  valuable  commentaries  on  the  Con- 

1  See  vol.  i.,  Bryce's  American.  Commonwealth,  p.  328. 
"  Bledsoe,  Is  Jefferson  Da-vis  a  Traitor,  p.  1 73. 


KENTUCK  Y  AND  VIRGINIA  RESOL  UTIONS.     97 

stitution,  passes  the  same  judgment  on  his  con- 
duct.1 

But,  besides  Madison,  the  fair  fame  of  the 
State  of  Virginia,  to  whom,  for  its  being,  the 
nation  owes  the  greatest  debt  of  gratitude, 
should  not  be  tarnished  by  the  taint  of  having 
so  soon  declared  that  the  laws  of  the  United 
States  and  the  acts  of  its  officers  could  be  held 
and  treated  as  null  and  void  by  every  State 
that  questioned  their  validity.  From  Virginia 
came  Washington,  the  great  general  under 
whose  command  we  became  a  nation,  the  pre- 
siding officer  over  the  convention  that  made 
the  Constitution,  and  who  as  our  first  President 
inaugurated  and  put  successfully  into  operation 
the  national  government,  assuming  no  unauthor- 
ized powers.  To  Virginia  also  is  due  the  plan 
of  the  new  government  proposed  in  the  con- 
vention by  Randolph,  and  ably  shaped  and 
developed  by  Madison  and  Mason.  Nor  can 
we  overlook  the  great  Chief- Justice,  Marshall, 
who  for  so  many  years  and  from  its  early 
existence  defined  the  powers  granted  to  the 
government,  and  maintained  them  with  fairness 
and  without  encroachment  on  those  of  the 
States. 

1  There  are  several  works  on  the  Constitution  by  Story, 
Bancroft,  G.  T.  Curtis,  and  others,  but  none  of  them  that  we 
have  seen,  except  the  recent  work  of  Professor  Hare,  that  ably 
treats  the  matter,  has  taken  up  the  question  of  nullification  and 
secession.  Apparently  the  authors  did  not  think  such  a  claim 
could  be  made.  Some  editions  recently  published  have  notes 
on  this  matter. 
r 


98  NULLIFICATION,    SECESSION. 

In  these  famed  resolutions  the  Virginia  State 
Assembly,  professing  a  determination  to  main- 
tain and  defend  the  Constitution  of  the  United 
States  and  of  the  State,  and  a  warm  attach- 
ment to  the  Union,  declared  that  the  powers 
of  the  Federal  Government  were  limited  by 
the  plain  sense  and  intention  of  the  instrument 
constituting  the  compact  the  States  are  parties 
to,  and  that  in  a  case  of  a  deliberate,  palpable, 
and  dangerous  exercise  by  the  Federal  Govern- 
ment of  other  powers  not  granted  by  the  in- 
strument of  the  compact  between  the  States,  it 
is  the  right  and  duty  of  the  States,  the  parties 
thereto,  to  interpose  and  arrest  the  evil  and 
maintain  their  rights.  It  asserted,  with  deep 
regret,  that  the  Federal  Government  had  en- 
larged its  powers  by  forced  constructions  of  the 
constitutional  charter  which  defines  them,  and 
that  there  were  indications  of  a  design  to  con- 
solidate the  States  into  one  sovereignty  and 
to  transform  the  government  into  an  absolute 
or  at  best  a  mixed  monarchy  ;  that  particularly 
the  Alien  and  Sedition  Acts  exceeded  the 
powers  delegated  by  the  Constitution,  and 
were  subversive  of  the  general  principles  of  a 
free  government,  and  were  expressly  and  posi- 
tively forbidden  by  the  Constitution  ;  that  the 
good  people  of  this  commonwealth,  with  the 
truest  anxiety  for  establishing  and  perpetuating 
the  Union,  and  with  the  most  scrupulous  fidel- 
ity to  the  Constitution,  appeal  to  the  other 
States  to  concur  in  declaring  the  acts  aforesaid 


KENTUCKY  AND  VIRGINIA  RESOLUTIONS.     99 

unconstitutional,  and  in  taking  the  necessary 
and  proper  measures,  in  co-operation  with  Vir- 
ginia to  maintain  the  rights  reserved  to  the 
States  or  people.1 

It  is  to  be  borne  in  mind  that  the  declaration 
of  Virginia  is,  "  that  in  a  case  of  a  deliberate, 
palpable,  and  dangerous  exercise  by  the  Federal 
Government  of  other  powers  not  granted  " — 
(that  is,  in  the  case  of  usurpations),  it  is  the  duty 
of  the  States,  not  the  duty  of  a  State,  to  inter- 
pose and  arrest  the  evil  and  maintain  their 
rights.  Certainly  in  such  cases  some  power 
should  interpose,  and  if  States  can  legally  under 
the  Constitution  interpose  to  remedy  such  an 
evil,  there  can  be  no  objection  to  such  interpo- 
sition. Indeed  a  usurpation  of  powers  might 
be  so  plain  and  serious  as  to  justify  rebellion. 

There  is  apparently  a  belief  amongst  some 
writers  since  Von  Hoist  published  his,  so-called, 
Constitutional  History  of  the  United  States, 
that  Virginia  laid  down  the  doctrine,  that 
"  States  can  interpose."  As  if  it  had  been  de- 
clared there  was  a  right  of  States  to  interpose 
their  authority  and  prevent  the  United  States 
from  enforcing  its  laws.  It  is  in  case  of  usurpa- 
tions only  Virginia  claims  that  it  is  a  duty  and 
right  to  interpose  to  redress  this  evil.  There  is 
no  statement  how  States  should  interpose ;  no 
suggestion  that  the  method  should  be  other 
than  in  the  way  the  Constitution  sanctions. 

J  Virginia's  resolutions  and  explanations,  4  Elliot,  528,  529, 
546  to  580. 


100  NULLIFICATION,   SECESSION. 

It  is  very  much  to  be  regretted  that  Mr. 
Henry  Adams,  in  his  very  able  and  interesting 
history  of  the  United  States,  should  have  added 
his  great  authority  to  this  construction  of  the 
resolves.  He  says  the  Republican  and  the 
Federalist  parties  "  were  divided  by  a  bottom- 
less gulf  in  their  theories  of  constitutional 
powers."  "The  Union  was  a  question  of  ex- 
pediency, not  of  obligation :  this  was  the  con- 
viction of  the  true  Virginian  school  and  of  Jef- 
ferson's opponents  as  well  as  of  his  supporters, 
of  Patrick  Henry  as  well  as  of  John  Taylor  of 
Carolina  and  of  John  Randolph  of  Roanoke"; 
and  "  The  essence  of  Virginian  republicanism 
lay  in  a  single  maxim — the  Government  shall 
not  be  the  final  judge  of  its  own  powers." 

The  resolutions  of  Virginia  were  understood 
by  the  other  States  as  a  denunciation  of  the 
laws  of  Congress,  not  as  an  assertion  of  a  right 
of  a  State  to  interpose  in  their  execution.  Of 
the  sixteen  States,  ten — Hildreth  informs  us,  a 
fact  that  seems  to  be  now  overlooked,  Mary- 
land, Delaware,  Pennsylvania,  New  Jersey, 
New  York,  Connecticut,  Rhode  Island,  Massa- 
chusetts, New  Hampshire,  and  Vermont — an- 
swered and  condemned  them.1  The  resolutions 
of  seven  of  these  ten  are  in  Elliot's  Debates.9 
None  of  the  other  States  supported  them ;  in- 
deed, from  Jefferson's  and  Madison's  corre- 
spondence, they  were  afraid  North  Carolina 

•Hildreth's  History  of  U.  S.,  vol.  v.,  p.  296. 
8  4  Elliot,  pp.  532-9. 


KEN  TUCK  Y  AND  VIRGINIA  RE  SOL  UTIONS.    IOI 

would  also  oppose  them.  The  purport  of  the 
opposing  resolutions  is  well  stated  in  the  report 
of  a  Committee  of  the  Legislature  of  New  York 
made  in  February,  1833,  in  the  following  words : 

"  These  resolutions  were  met  by  several  of  the  State  Legis- 
latures to  whom  they  had  been  communicated  by  counter  reso- 
lutions protesting  against  them  with  much  warmth,  chiefly  on 
the  ground  that  the  act  of  a  State  Legislature  declaring  a  law 
of  the  United  States  unconstitutional  was  in  itself  an  unconsti- 
tutional assumption  of  authority,  and  an  unreasonable  inter- 
ference with  the  exclusive  jurisdiction  of  the  Supreme  Court 
of  the  United  States ;  accompanied  in  some  instances,  with 
severe  denunciation  against  their  disorganizing  tendency." 

Some  of  the  States  argued  the  question  of  the 
constitutionality  and  expediency  of  the  Alien 
and  Sedition  Laws,  and  one  State  approved  of 
the  able  advocacy  and  demonstration  of  their 
validity  and  expediency  by  the  minority  of  the. 
General  Assembly  of  Virginia. 

Of  the  States,  whose  resolutions  are  in  Elliot's 
Debates,  two  only,  New  York  and  New  Hamp- 
shire, mention  the  name  of  Kentucky.  Appar- 
ently the  extreme  viciousness  of  her  doctrine 
escaped  notice.  In  fact  the  nullification  doc- 
trine, the  right  of  each  State  to  resist  the  exe- 
cution of  United  States  laws  though  asserted 
at  the  time  by  Kentucky,  was  unnoticed  or 
forgotten  until  brought  to  life  again  by  South 
Carolina  thirty  years  afterwards.  The  right  of 
secession  was  not  suggested  in  the  resolutions 
of  either  Virginia  or  Kentucky. 

Nor  did  it  appear  that  any  one  of  the  Sena- 
tors or  the  Representatives  of  Kentucky 


IO2  NULLIFICATION,   SECESSION. 

ventured  to  lay  before  their  respective  Con- 
gressional Houses  the  nullifying  resolutions  of 
that  State,  notwithstanding  the  injunction  con- 
tained in  them  to  that  effect.1 

Kentucky's  Legislature  answered  the  reso- 
lutions of  the  other  States  regretting  the 
unfounded  and  uncandid  suggestions  in  them 
derogatory  to  her,  and  then  declared  an  attach- 
ment to  the  Union.  The  Legislature  none  the 
less  resolved,  that  the  several  States  that  formed 
the  Constitution  were  sovereign  and  indepen- 
dent, having  the  unquestionable  right  to  judge 
of  infractions,  and  that  in  such  a  case  nullifica- 
tion was  the  rightful  remedy.  The  ending  is 
not  however  that  they  nullify,  but  "  this  Com- 
monwealth does  now  enter  against  them  "  (the 
Alien  and  Sedition  Laws)  "  its  solemn  PRO- 
TEST."* The  protest  in  capital  letters:  and 
that  is  all  the  State  did. 

We  come  again  to  the  Virginia  resolutions. 
When  that  State,  in  answer  to  her  resolutions, 
received  the  indignant  remonstrances  of  her 
sister  States,  she  felt  obliged  to  defend  her 
position.  That  defence  was  made  at  great 
length  in  her  General  Assembly  held  the  next 
year,  1799,  by  Madison,  the  author  of  the  reso- 
lutions and  the  chairman  of  the  committee  to 
whom  the  communications  of  the  other  States 
had  been  referred.  The  report  which  was 
adopted  by  the  assembly,  coming  from  Madispn, 

1  Hildreth's  History,  vol.  v. ,  296. 
1 4  Elliot,  545. 


KENTUCKY  AND  VIRGINIA  RESOLUTIONS.    1 03 

the  principal  constructor  of  the  Constitution, 
should  give  no  countenance  to  nullification  and 
secession.  Upon  examination  it  will  be  found 
that  there  is  none. 

It  begins  with  the  very  conciliatory  and  digni- 
fied statement  that,  though  there  might  be  pain- 
ful remarks  on  the  spirit  and  manner  of  the  pro- 
ceedings of  the  States  who  disapprove  of  the 
resolutions  of  Virginia,  it  is  more  consistent 
with  the  dignity  and  duty  of  the  General  Assem- 
bly to  hasten  an  oblivion  of  every  circumstance 
diminishing  the  mutual  respect,  confidence,  and 
affection  of  the  members  of  the  Union. 

The  explanatory  report  takes  up,  first,  the 
resolution  to  maintain  and  defend  the  Constitu- 
tion of  the  United  States  and  the  warm  attach- 
ment of  Virginia  to  the  Union,  and  justly  says 
no  one  can  object  to  this. 

The  report  next  notices  the  assertion  that  the 
powers  of  the  Federal  Government,  as  resulting 
from  the  compact  to  which  the  States  are  parties, 
are  limited  by  the  plain  sense  and  intention  o£ 
the  instrument  constituting  that  compact.  This 
is  merely,  the  powers  of  the  United  States  come 
from  and  are  limited  by  the  Constitution. 

The  report  goes  on  and  says  the  compact  is 
the  Constitution,  to  which  the  States  are  parties. 
Then  is  defined  what  is  meant  by  States.  States 
sometimes  mean  territories  occupied  by  the 
political  societies  within  them,  sometimes  those 
societies  organized  into  governments,  and, 
"  lastly  it  means  the  people  composing  those 


104  NULLIFICATION,    SECESSION. 

political  societies  in  their  highest  sovereign 
capacity."  It  says  all  will  concur  in  the  last- 
mentioned,  "  because  in  that  sense  the  Constitu- 
tion was  submitted  to  the  States,  in  that  sense 
the  States  ratified  it,"  and  in  that  sense  they 
are  parties  to  the  compact  from  which  the 
powers  of  the  Federal  Government  result.  Now, 
not  forgetting  it  is  the  States,  the  people,  that 
are  parties,  is  not  this  a  declaration,  an  explicit 
one,  that  the  people  of  the  several  States  made 
the  Constitution,  and  not  one  independent  sov- 
ereign State  with  other  independent  sovereign 
States  ? 

Then  the  report  further  says  that  the  Con- 
stitution was  formed  by  the  sanction  of  the 
States,  given  by  each  in  its  sovereign  capacity. 
Taking  the  definition  of  States  as  before  given, 
this  is  merely  an  assertion  that  in  each  State  the 
people,  who  have  the  sovereign  capacity,  sanc- 
tioned it.  After  this  comes  the  rather  obscure, 
and  possibly  objectionable,  doctrine.  "  The 
States,"  meaning  the  people,  "  then,  being  the 
parties  to  the  constitutional  compact,  and  in 
their  sovereign  capacity,  it  follows  of  necessity 
that  there  can  be  no  tribunal  above  their  author- 
ity to  decide,  in  the  last  resort,  whether  the  con- 
tract made  by  them  be  violated,  and  conse- 
quently that  as  the  parties  to  it  they  must 
themselves  decide  in  the  last  resort." 

It  is  to  be  noticed  that  the  resolution  care- 
fully limits  the  decision  of  the  people  or  States 
to  "  in  the  last  resort."  It  does  not  define  when 


KENTUCKY  AND  VIRGINIA  RESOLUTIONS.    IO5 

the  last  resort  occurs.  But  the  resolution  (what 
the  report  is  commenting  on)  is,  "  that  in  case 
of  a  deliberate,  palpable,  and  dangerous  exer- 
cise of  other  powers  not  granted  by  the  said 
compact  " — that  is,  in  cases  of  deliberate,  palpa- 
ble, and  dangerous  usurpation — there  is  a  right 
of  the  parties  to  the  compact  or  government  to 
decide,  to  act,  to  resist  that  usurpation.  This 
is  a  declaration  of  the  right  of  revolution  ;  it  is  an 
assertion  of  that  right  in  the  last  resort, — when 
argument  and  reasoning  fail ;  a  right  that  Web- 
ster admitted ;  the  right  that  we  the  colonies 
claimed  against  Great  Britain  ;  the  right  of  re- 
sistance against  deliberate,  palpable,  dangerous 
usurpations  of  power  ;  otherwise  there  is  no  re- 
dress for  tyranny.  No  one  denies  this  right.  If 
unsuccessful,  it  is  rebellion,  and  punished  as' 
such.  So  carefully,  however,  did  Virginia  assert 
this  right  that  the  explanatory  report  itself  calls 
attention  to  "  guard  against  misconstruction." 
The  interposition  is  not  only  to  be  in  cases  of 
deliberate,  dangerous,  and  palpable  breaches  of 
the  Constitution,  but  "  to  be  safety  that  of  arrest- 
ing the  progress  of  the  evil  of  usurpation."  The 
resolutions  do  not  even  claim  that  in  case  of 
usurpation  the  binding  compact  of  the  government 
is  broken  up,  but  that  the  parties  to  it,  which  it 
has  stated  to  be  the  people,  should  solely  inter- 
fere to  arrest  the  evil.  The  report  proceeds 
with  the  statement  that  if  there  could  be  no 
interposition  from  usurped  powers  there  is  a 
subversion  of  rights  recognized  under  State 


106  NULLIFICATION,    SECESSION. 

constitutions,  and  a  denial  of  the  fundamental 
principle  upon  which  our  independence  was 
declared. 

The  report  admits  as  true,  "  that  the  judicial 
department  is  in  all  questions  submitted  to  it 
by  the  forms  of  the  Constitution  to  decide  in 
the  last  resort."  We  have  only  to  turn  to  the 
Constitution  to  see  how  extensive  is  this  sub- 
mission. It. is  in  all  cases  arising  under  the 
Constitution  and  the  laws  made  under  it,  in  all 
cases  in  which  States  are  parties,  in  all  cases 
where  treaties  or  the  United  States  are  concerned 
that  it  has  this  supreme  power  of  judgment. 
This  is  precisely  the  contrary  doctrine  to  that 
of  nullification. 

The  explanation  further  proceeds  that  it  is 
in  the  last  resort,  "  in  relation  to  the  authori- 
ties of  the  other  departments  of  the  government, 
and  not  in  relation  to  the  rights  of  the  parties 
to  the  constitutional  compact,  from  which  the 
judicial  as  well  as  the  other  departments,  hold 
their  delegated  trusts.  On  any  other  hy- 
pothesis, the  delegation  of  judicial  power 
would  annul  the  authority  delegating  it ;  and 
the  concurrence  of  this  department  with  the 
others  in  usurped  powers,  might  subvert  for- 
ever, and  beyond  the  possible  reach  of  any 
rightful  remedy,  the  very  Constitution  which  all 
were  instituted  to  preserve."  Perhaps  it  may 
not  be  amiss  to  notice  that  all  judicial  power 
is  over  the  rights  of  the  parties  delegating  it, 
the  parties  to  the  compact  establishing  the 


KEN  TUCK  Y  AND  VIRGINIA  RE  SOL  U  TIONS.    tO/ 

government.  The  delegation  is  not  confined 
to  power  over  the  authorities  of  the  other 
departments  of  the  government,  and  the  dele- 
gation of  judicial  power  does  annul  the  author- 
ity delegating  it  as  far  as  the  power  delegated 
extends.  It  does  not  delegate  usurpation  of 
powers,  nor  does  it  prevent  revolution  against 
usurped  powers.  This  is  what  the  explanation 
means.  But  why  the  exception  as  to  the  other 
departments  of  government  ?  Usurpation  by 
the  judiciary  over  the  other  departments  is 
contrary  to  the  conferred  powers,  and  thereby 
affects  the  rights  of  the  parties  to  the  compact. 
It  is  beyond  what  they  delegate.  Such  usurpa- 
tion could  very  properly  be  resolved  against : 
even  more,  resisted  "  in  the  last  resort." 

Then  comes  the  assertion.  "  The  authority 
of  constitutions  over  governments  and  of  the 
sovereignty  of  the  people  over  constitutions 
are  truths  which  are  at  all  times  to  be  kept  in 
mind,  and  at  no  time  perhaps,  more  necessary 
than  at  present." 

As  people  make  constitutions  for  the  sole 
purpose  of  conferring  powers  to  governments 
over  themselves  which  are  to  be  superior  and 
to  compel  obedience,  and  punish  those  refusing 
it ;  and  as  the  people  always  have  the  power  to 
make  new  constitutions  or  to  amend  them 
under  the  regulations  they  have  established ; 
the  suggestion  of  superiority  seems  a  glittering 
generality,  at  that  time  rather  out  of  place. 

The  explanation  then  defends  the  assertion 


108  NULLIFICATION,    SECESSION. 

in  the  resolutions,  that  these  assumptions  of 
powers,  extending  the  sovereignty  of  the 
United  States,  supersede  the  sovereignty  of 
the  States  in  the  cases  reserved  to  them,  and 
that  its  result  "  would  be  to  transform  the 
republican  system  of  the  United  States  into  a 
monarchy."  This  fear  that  the  government 
would  by  assuming  undelegated  powers  end  in 
a  monarchy  was  the  objection  to  the  Constitu- 
tion made  in  the  convention  that  formed  it, 
and  in  the  conventions  of  the  people  of  the  dif- 
ferent States  when  they  adopted  it.  And  in 
the  Virginia  resolutions  it  is  said  to  be  "the 
general  sentiment  of  America."  It  is  further 
argued  this  great  assumption  of  increased  pre- 
rogative and  patronage  of  the  President  might 
enable  him  to  secure  his  re-election  and  regulate 
the  succession  and  establish  it  as  hereditary. 
This  fear  of  that  day  to  us  seems  absurd ;  but 
in  the  days  of  George  the  Third,  and  not  so 
many  years  from  the  Stuarts,  it  had  a  more 
plausible  foundation. 

The  explanation  further  says,  and  it  is  in 
fact  an  admission  of  its  truth,  "  that  it  has  been 
stated  that  it  belongs  to  the  judiciary  of  the 
United  States  and  not  to  the  State  Legislatures 
to  declare  the  meaning  of  the  Federal  Consti- 
tution." "  But  a  declaration  that  proceedings 
of  the  Federal  Government  are  not  warranted 
by  the  Constitution  is  a  novelty  neither  among 
the  citizens  nor  among  the  Legislatures  of 
the  States." 


KEN  TUCK  Y  A  ND  VIRGINIA  RE  SOL  U  TIONS.    1 09 

The  report  then  takes  up  and  undertakes  to 
defend  the  resolve,  that  the  government  has 
manifested  a  spirit  to  enlarge  its  granted  powers 
by  a  forced  construction  of  the  Constitution. 
It  instances  especially  the  Alien  and  Sedition 
Laws,  and  declares  the  Alien  Law  to  be  uncon- 
stitutional, because  it  gave  the  President  legis- 
lative and  judicial  powers  in  addition  to  those 
of  the  Executive.  The  Act,  it  says,  enabled 
him  to  send  out  of  the  country,  in  times  of 
peace,  aliens,  citizens  of  a  friendly  nation  whom 
he  should  judge  dangerous  to  the  public  safety 
or  suspect  of  treacherous  or  secret  machinations 
against  the  government,  giving  him  thus  legis- 
lative power,  making  his  will  the  law.  He  also 
is  the  judiciary ;  without  the  oath  or  affirma- 
tion of  an  accuser,  his  suspicion  the  only  evi- 
dence to  convict :  his  order  the  only  judgment 
to  be  executed.  And  this  order  may  be  so 
made  as  to  deprive  the  victim  of  the  privilege 
of  the  habeas  corpus. 

The  Sedition  act  was  also  claimed  to  be  be- 
yond the  power  of  Congress  for  many  reasons, 
and  emphatically  because  it  punished  by  fine 
and  imprisonment  false,  scandalous,  and  mali- 
cious writings  against  the  government ;  thus 
abridging  the  liberty  of  the  press,  the  provision 
in  the  amendments  of  the  constitution  for 
which  Virginia  had  been  so  strenuous. 

In  conclusion  and  in  relation  to  these  re- 
solves the  report  says,  nor  can  declarations 
either  denying  or  affirming  the  constitutionality 


IIO  NULLIFICATION,    SECESSION. 

of  measures  of  the  government  be  deemed,  in 
any  point  of  view  as  assumption  of  the  office 
of  the  judge.  They  "are  expressions  of  opinion 
unaccompanied  with  any  other  effect  than  that 
they  may  produce  an  opinion  by  exciting  re- 
flection." They  "  may  lead  to  a  change  in  the 
legislative  expressions  of  the  general  will — possi- 
bly to  a  change  in  the  opinion  of  the  judiciary." ' 

"  And  there  can  be  no  impropriety  in  com- 
municating such  a  declaration  to  other  States," 
"  and  inviting  their  concurrence  in  a  like  dec- 
laration." Then  it  speaks  of  the  legitimate 
rights  of  States  to  originate  amendments  to  the 
Constitution  ;  that  it  was  not  improper  or  ob- 
jectionable in  Virginia  to  ask  the  States  to  take 
"  the  necessary  and  proper  measures  "  to  main- 
tain the  rights  reserved  to  the  States  or  people  ; 
and  that  if  the  other  States  had  concurred,  "  it 
can  be  scarcely  doubted  these'  simple  measures 
would  have  been  as  sufficient  as  they  are  unex- 
ceptionable." This  is  a  statement  that  the  res- 
olutions were  a  mere  matter  of  opinion  and 
that  the  laws  complained  of  were  unconstitu- 
tional, and  if  the  other  States  had  been  of  the 
same  opinion,  the  States  might  have  constitu- 
tionally remedied  the  evil. 

Again  is  a  repetition  of  the  warm  affection  of 
the  people  of  the  State  to  the  Union,  and  the 
explanation  calls  to  remembrance  the  part  the 
State  had  borne  in  the  establishment  of  the 
"  National  Constitution,"  and  subsequently  of 
1  4  Elliot,  578. 


KEN  TUCK  Y  AND  VIRGINIA  RE  SOL  U  TTONS.   1 1 1 

maintaining  its  authority  without  a  single  ex- 
ception of  internal  resistance  or  commotion,  and 
a  declaration  that  the  people  of  Virginia  must 
be  above  the  necessity  of  opposing  any  other 
shield  to  attacks  on  their  national  patriotism, 
"  that  the  resolutions  themselves  are  the  strong- 
est evidence  of  attachment  both  to  the  Consti- 
tution and  the  Union."  "And  as  the  result  of 
the  whole,"  they  adhere  to  their  resolutions 
and  "  renew  their  protest  against  Alien  and  Se- 
dition acts  as  palpable  and  alarming  infractions 
of  the  Constitution."  Madison  in  a  letter  to 
Edward  Everett  informs  us  the  words,  "  not 
law  but  utterly  null,  void,  and  of  no  force  or 
effect,"  which  followed  the  word  "  unconstitu- 
tional "  in  the  resolutions  as  to  the  Alien  and 
Sedition  laws,  were  struck  out  by  consent,  and 
also  that,  "  the  tenor  of  the  debate  discloses  no 
reference  whatever  to  a  constitutional  right  in 
an  individual  State  to  arrest  by  force  the  op- 
eration of  a  law  of  the  United  States."  ' 

These  resolutions  and  the  explanation — Vir- 
ginians always  put  them  together — were  nomi- 
nally the  political  creed  of  the  republican  party 
that  so  long  ruled  the  United  States.  They 
were  a  denunciation — perhaps  a  partisan  one — 
of  alleged  unconstitutional  laws  made  by  the 
federal  party  in  the  administrations  of  Wash- 
ington and  Adams,  and  expressed  a  belief, 
which  few  to-day  will  say  was  warranted,  that 

1  Madison's  letter  to  Everett,  before  referred  to.  Oct.  No. 
N.  Amtr.  Review,  1830. 


112  NULLIFICATION,   SECESSION. 

there  was  a  design  in  them  to  transform  the 
government  into  an  absolute  or  at  best  a  mixed 
monarchy. 

The  methods  to  arrest  the  evils  of  these 
alleged  unconstitutional  assumptions  of  un- 
delegated  powers  were  stated  to  be  authorized 
by  the  Constitution  itself.  And  by  the  con- 
currence with  Virginia  of  the  other  States  to 
whom  the  resolutions  were  submitted,  they,  the 
States,  might  remedy  the  alleged  evils  by  their 
representatives  in  Congress  or  by  the  choice  of 
Senators  of  different  opinions  ;  there  were  to  be, 
the  Virginia  explanation  said,  no  less  than  two 
Congresses  before  the  laws  expired  by  their 
limitation;  or  if  necessary,  the  explanation 
further  said,  the  States  by  a  convention  could 
alter  the  Constitution. 

The  resolutions  are  those  of  strict  construc- 
tionists  of  the  powers  granted  by  the  Constitu- 
tion ;  they  in  no  way  assert  the  nullification 
doctrines  of  Kentucky,  which  some  thirty  years 
afterwards  were  revived  and  developed  to  their 
logical  result  of  secession  by  Calhoun  and  South 
Carolina. 

The  prosecutions  under  the  Sedition  law, 
the  arresting  and  carrying  through  the  country 
and  the  fining  and  imprisoning  as  criminals, 
for  the  expression  of  opinions,  of  men  whom 
the  Republicans  held  as  eminent  and  respect- 
able, such  as  Thomas  Cooper,  Jefferson's  dear 
friend,  had  very  great  influence  in  the  defeat 
of  the  federal  party  under  the  elder  Adams  and 


KEN  TUCK  Y  A  ND  VIRGINIA  RE  SOL  UTIONS.    II 3 

of  the  triumph  of  Jefferson  and  the   Repub- 
licans. 

The  resolutions  of  Virginia  alarmed  Wash- 
ington as  exhibiting  a  discontent  with  the 
Union.  He  wrote  to  Patrick  Henry,  one  of 
the  Virginians  Henry  Adams  names,  to  induce 
him  to  interpose  his  great  influence  in  the 
matter.1  Henry,  whose  impassioned  eloquence 
had  done  so  much  to  bring  Virginia  into  the 
war  of  the  revolution,  who  ably  and  persistently 
opposed  in  the  Virginia  convention  the  accep- 
tance of  the  Constitution  from  fear  that  the 
great  powers  given  to  the  United  States  would 
be  fatal  to  liberty,  had  become  one  of  its 
strongest  supporters.  He  shared  Washington's 
anxiety.  Though  he  had  often  been  Governor 
of  the  State,  and  had  declined  offers  of  the 
most  important  national  offices  under  Washing- 
ton, he  offered  himself  as  a  candidate  for  elec- 
tion to  the  House  of  Burgesses,  to  do  what  he 
could  to  put  an  end  to  this  discontent  and 
what  he  considered  the  rash  measures  of  the 
State.  In  his  speech  before  his  constituents, 
he  declared  that  Virginia  had  quitted  the 
sphere  in  which  she  had  been  placed  by  the 
Constitution  in  daring  to  pronounce  upon  the 
validity  of  federal  laws,  and  asked,  "  whether 
the  county  of  Charlotte  would  have  any 
authority  to  dispute  an  obedience  to  the  laws 

1  Washington's  letter  to  Henry,   Sparks'  Washington,  vol. 
xi.,  p.  387.     The  letter  also  contains  his  opinion  of  those  in 
opposition  to  ihe  government. 
'3 


114  NULLIFICATION,   SECESSION. 

of  Virginia,  and  he  pronounced  Virginia  to  be 
to  the  Union  what  the  county  of  Charlotte  was 
to  her."  s  Nor  did  he  believe  that  resistance 
would  be  peaceful  ;  for  he  warned  the  people 
that  the  opposition  of  Virginia  to  the  acts  of 
the  General  Government  must  beget  their 
enforcement,  and  that  war  would  ensue  with 
Washington  and  a  veteran  army  as  opponents. 
It  was  the  period  of  our  hostility  with  France, 
and  Washington  had  been  made  commander-in- 
chief.  Henry  was  chosen  to  the  House  of 
Burgesses  by  a  large  majority,  but  died  before 
the  session  began  in  which  Virginia's  concilia- 
tory explanation  of  her  resolves  and  her  loyalty 
and  attachment  to  the  Union  and  the  su- 
premacy of  those  laws  in  all  delegated  powers 
was  made. 

The  other  two  distinguished  Virginians 
whom  Mr.  Adams  mentions;  are  John  Taylor 
of  Caroline  and  John  Randolph  of  Roanoke. 
Taylor,  a  great  friend  of  Jefferson's,  in  1823 
published  a  book  called  New  Views  of  the 
Constitution  of  the  United  States.  Of  so  little 
importance,  so  little  known,  were  the  Kentucky 
resolutions  then  that  he  does  not  cite  them,  as 
far  as  we  can  find  from  our  examination,  which 
we  do  not  claim  to  be  thorough.  In  the  pref- 
ace he  speaks  of  his  "  survey  as  not  devoid  of 
novelty."  He  controverts  at  great  length  the 
opinions  of  Hamilton  and  Madison,  as  given  in 

8  Wirt's  Life  of  Patrick  Henry,  pp.  393,  394.     John  Coit 
Tyler's  Life  of  Patrick  Henry,  p.  373. 


KEN  TUCK  Y  AND  VIRGINIA  RE  SOL  UTIONS.    1 1 5 

the  Federalist  and  a  pamphlet  published  in 
South  Carolina  with  similar  views,  called 
National  and  State  Rights  Considered  by  One 
of  the  People.  His  views  of  the  Constitution 
are,  as  he  says,  new.  He  advances  the  doctrine 
that  in  a  conflict  between  the  laws  and  measures 
of  the  State  and  General  Government  neither 
shall  prevail,  but  substantially  the  State  should, 
unless  three  fourths  of  the  States  by  an  amend- 
ment of  the  Constitution  should  decide  other- 
wise. 

John  Randolph  of  Roanoke  was  notorious 
for  his  eccentricities  and  vagaries,  his  attacks 
on  all  parties  and  all  policies ;  if  he  had  any 
opinion  it  was  probably,  as  he  said,  that  the 
Virginia  resolutions  and  their  explanations 
were  "  his  political  Bible."  What  the  resolu- 
tions and  explanations  are  we  have  endeavored 
to  set  forth. 


CHAPTER  V. 

SUPREMACY   OF    CONSTITUTION    MAINTAINED. 

IN  less  than  the  brief  space  of  two  and  a  half 
years  after  the  Kentucky  resolutions  were 
passed  Jefferson  became  President.  If  he  be- 
lieved in  those  resolutions  he  should  at  once 
have  made  a  general  jail  delivery.  All  those 
in  prison  under  United  States  laws  for  counter- 
feiting or  forging  United  States  bank  bills, 
robbing  or  embezzling  from  the  mail,  violating 
the  custom-house  laws,  interfering  with  the 
judicial  proceedings  of  the  •  government,  or 
committing  any  crime,  except  the  few  men- 
tioned in  the  Constitution,  should  have  been 
set  free  (for  the  Kentucky  resolutions  expressly 
denounced  all  the  United  States  laws  punishing 
those  crimes  "  as  altogether  void  and  of  no 
force  ").  Jefferson  contented  himself  with  par- 
doning those  imprisoned  under  the  Sedition 
laws. 

In  his  inaugural  address  to  Congress,  at  the 
very  beginning  of  his  administration,  Jefferson 
announced  principles  totally  and  fundamentally 
opposed  to  the  Kentucky  resolutions.  He 
pleaded  for  unity,  and  denied  that  every  dif- 
116 


SUPREMA  CY  OF  CONSTITUTION.          .117 

ference  of  opinion  was  a  difference  of  principle. 
"  We  are  all  Republicans ;  we  are  all  Federal- 
ists." '  He  declared  "  the  preservation  of  the 
general  government,  in  its  whole  constitutional 
vigor,  as  the  sheet-anchor  of  our  peace  at  home 
and  safety  abroad."  He  also  said  "absolute  ac- 
quiescence in  the  decisions  of  the  majority,  the 
vital  principle  of  republics  from  which  there  is 
no  appeal  but  to  force,  the  vital  principle  and 
immediate  parent  of  despotism."  a  Can  any- 
thing be  more  directly  opposed  to  the  Kentucky 
resolutions,  that  give  to  every  State  a  veto  of 
every  United  States  law  or  act  that  it  deems 
unconstitutional,  than  these  declarations  of  the 
preservation  of  the  government  in  all  its  con- 
stitutional vigor  and  of  absolute  acquiescence  in 
the  will  of  the  majority  ?  Have  they  not  been, 
ever  since  that  inauguration  day,  the  cardinal 
principles  of  Jeffersonian  democracy?  Perhaps  it 
is  strange  that  Jefferson,  coming  from  Virginia, 
did  not  make  the  exception  of  the  resolutions  of 
the  Legislature  of  that  State,  that  in  case  of  plain 
palpable  usurpation  of  powers  the  people  of  the 
States  could  interpose  to  redress  the  evil  by 
constitutional  methods.  Absolute  acquiescence 
in  every  decision  of  the  majority  abrogates 
even  the  right  of  rebellion  against  oppressive 
usurpations  that  Webster  announced.  It  is  but 
reasonable  to  suppose  that  Jefferson  would 


1  H.  Adams,  vol.  i.,  p.  200. 
9  H.  Adams,  vol.  i.,  p.  203. 


1 1 8  NULLfFICA  TION,    SECESSION.    - 

have  made  this  exception  of  Webster's  and  the 
reasonable  affirmations  of  the  Virginia  resolu- 
tions, if  he  had  been  obliged  to  notice  them. 
No  possible  argument,  however,  can  reconcile 
these  inaugural  principles  with  the  Kentucky 
resolutions.  Is  it  possible  that  the  great  leader 
of  the  Republican  party  could  have  announced 
such  doctrines  if  the  Republican  party  of  Vir- 
ginia, of  which  he  was  the  chief,  held  precisely 
the  contrary,  as  Mr.  Adams  informs  us? 

Jefferson's  policy  during  the  eight  years  of  his 
administration  was  emphatically  national,  and 
not  that  of  a  favorer  of  State  rights  nor  even 
of  a  strict  construction  of  the  powers  delegated 
to  the  General  Government.  In  March,  1806, 
he  signed  an  act  laying  out  and  making  a  road 
from  Cumberland,  on  the  Potomac,  in  Maryland, 
to  Ohio.  Again  he  approved  a  bill  for  this 
purpose  in  1810,  though  from  his  writings  it  is 
apparent  he  doubted  their  constitutionality. 
Madison,  Monroe,  and  Jackson  afterwards 
vetoed  bills  passed  by  Congresses  of  their 
political  faith  in  favor  of  this  or  other  roads, 
because,  as  they  declared,  they  were  beyond 
the  powers  granted  by  the  Constitution. 

During  Jefferson's  administration  a  serious 
controversy  between  the  United  States  and  the 
great  State  of  Pennsylvania  as  to  the  national 
powers  of  the  government  came  to  a  crisis. 
During  the  revolutionary  war  the  sloop  Active, 
bound  for  New  York  with  a  cargo  of  supplies 
for  the  British,  was  taken  from  her  master  by 


SUPREMACY.  OF  CONSTITUTION.         119 

Gideon  Olmstead  of  Connecticut  and  three 
men,  who  had  been  impressed  by  the  English 
and  put  on  the  vessel  to  assist  in  her  naviga- 
tion. An  armed  brig  of  Pennsylvania  took  the 
Active  from  Olmstead  and  his  associates  and 
brought  her  into  the  port  of  Philadelphia.  The 
State  Admiralty  Court  of  Pennsylvania  tried 
the  case  by  a  jury  according  to  the  State  laws, 
awarding  to  Olmstead  and  his  companions  only 
one  quarter  of  the  prize  money,  and  distribu- 
ting the  remainder  to  the  State,  and  those  inter- 
ested in  the  brig  taking  the  Active  and  a  com- 
panion vessel.  An  appeal  was  made  by  Olm- 
stead from  the  State  court  to  the  Continental 
Congress  as  the  power  that  had  control  of  the 
maritime  affairs  of  the  revolting  colonies.  Con- 
gress very  properly  insisted  on  its  jurisdiction 
over  such  cases.  The  Admiralty  Court  of 
Pennsylvania,  disregarding  this  right,  ordered 
the  sloop  and  cargo  to  be  sold,  and  distributed 
the  proceeds  ;  the  Continental  Congress,  not 
having  the  power  to  enforce  its  rights,  let  the 
matter  pass.  Some  years  afterwards,  when  our 
new  government  had  gone  into  effect,  Olmstead 
filed  his  libel  before  the  United  States  District 
Court  of  Pennsylvania  and  obtained  a  decision 
in  his  favor  reversing  the  decree  of  the  Penn- 
sylvania court.  Judge  Peters,  of  the  United 
States  District  Court,  hesitated  to  enforce  this 
decree  against  Pennsylvania,  wishing  to  obtain 
the  sanction  of  the  Supreme  Court  of  the 
United  States.  A  mandamus  was  issued  by 


I2O  NULLIFICATION,    SECESSION. 

the  Supreme  Court  directing  its  district  court 
to  enforce  its  decree,  Chief-Justice  Marshall 
saying  that  if  a  State  could  annul  the  judgment 
of  a  United  States  Court  the  Constitution  itself 
became  a  solemn  mockery.  "  The  State  of 
Pennsylvania  can  possess  no  constitutional 
power  to  resist  the  legal  process  which  may 
be  directed  in  this  case." 

The  State  of  Pennsylvania  did  resist  and  did 
pass  laws  and  make  military  preparations  to 
enforce  them.  Here  was  a  clear  case  of  conflict 
between  a  State  and  the  United  States  as  to 
the  powers  the  State  had  given,  and  where, 
according  to  the  Kentucky  resolutions,  and 
according  to  Jefferson,  if  he  were  the  author, 
the  State,  as  a  party  to  the  compact  of  govern- 
ment, there  being  no  umpire,  could  lawfully 
resist  and  insist  on  the  construction  it  gave  to 
the  case.  While  this  conflict  was  pending,  the 
Republican  party,  which  was  predominant  in 
the  United  States  Congress,  both  House  and 
Senate,  in  order  to  enforce  the  authority  of  the 
United  States  and  the  decision  of  its  Court, 
passed  an  act  authorizing  the  President,  in  cases 
of  insurrection  or  obstruction  to  the  law,  to 
employ  such  part  of  the  land  and  naval  force 
of  the  United  States  as  shall  be  judged  neces- 
sary. Jefferson  signed  this  act  in  1807,  thus 
sanctioning  the  compelling  of  the  obedience  of 
a  State  to  the  General  Government. 

It  is  to  be  observed  that  this  took  place  in  a 
case  where  the  dispute  was  as  to  the  jurisdic- 


SUPREMACY  OF  CONSTITUTION.         121 

tion  of  the  United  States  in  a  case  between  a 
State  court  and  the  authority  of  the  old  Con- 
federate Government.  The  party  of  which 
Jefferson  was  the  chief  could  have  refused  to 
enforce  the  decision  of  the  Supreme  Court  on 
what  seems  a  plausible  ground,  that  the  Consti- 
tution gave  no  power  to  the  United  States  over 
the  disputes  between  the  old  Confederacy  and 
the  States ;  but  neither  Congress,  nor  Jefferson 
by  a  veto,  did  this.  They  enforced  the  nation- 
ality of  the  Confederacy  and  of  the  United 
States  Government  as  its  successor. 

The  carrying  out  of  the  decree  of  the  United 
States  Court  was  resisted  by  the  Pennsylvania 
State  militia  under  General  Bright,  who  had  been 
called  out  by  the  Governor  under  the  sanction 
of  the  Legislature  ;  the  United  States  marshal 
summoned  a'  posse  of  two  thousand  men,  and 
war  was  imminent.  Madison  had  now  become 
President,  and  the  Governor  appealed  to  him 
to  discriminate  between  a  factious  opposition 
to  the  laws  of  the  United  States  and  resistance 
to  a  decree  founded  on  a  usurpation  of  power ; 
but  Madison  replied  that  he  was  specially  en- 
joined by  statute  to  enforce  the  decrees  of 
the  Supreme  Court.  The  State  yielded,  and 
also  paid  the  money  necessary  to  carry  out  the 
decree  of  the  United  States  Court.  General 
Bright  and  his  men  were  brought  to  trial  for 
forcibly  obstructing  the  United  States  process, 
and  were  convicted  and  sentenced  to  fine  and 
imprisonment.  Madison  pardoned  those  con- 


122  NULLIFICATION,    SECESSION. 

victed,  and  remitted  the  fines  on  the  ground  that 
they  had  acted  under  a  mistaken  sense  of  duty.1 

Nor  is  this  all  of  this  matter.  Pennsylvania, 
though  finally  yielding  an  obedience  to  the 
United  States,  felt  aggrieved,  and  suggested 
an  amendment  to  the  Constitution,  that  ques- 
tions arising  between  States  and  the  federal 
judiciary  should  be  submitted  to  an  impartial 
tribunal,  and  sent  the  proposed  amendment  to 
Virginia. 

The  Legislature  of  Virginia  appointed  a  com- 
mittee to  consider  this  proposed  amendment, 
part  of  whose  report  was,  "  that  a  tribunal  is 
already  provided  by  the  Constitution  of  the 
United  States,  to  wit,  the  Supreme  Court,  more 
eminently  qualified,  from  their  habits  and  duties, 
from  the  mode  of  their  selection,  and  from  their 
tenure  of  office,  to  decide  the  disputes  afore- 
said in  an  enlightened  and  •  impartial  manner 
than  any  other  tribunal  that  could  be  created." 
The  resolutions  disapproving  the  proposed 
amendment  were  passed  unanimously,  both  in 
the  House  of  Delegates  and  Senate.*  Thus  in 

1  A  full  account  of  this  case,  though  well  known  and  re- 
ported, is  not  to  be  found  in  the  histories.  The  case  was 
referred  to  as  the  Gideon  Olmstead  case  in  the  debates  in 
Congress  at  the  time  of  South  Carolina's  threatened  nullifi- 
cation in  1833.  The  account  of  the  trial  of  General  Bright  is 
taken  from  Carson's  History  of  the  Supreme  Court  of  the 
United  States,  p.  213  and  seq. 

3  Webster's  Speeches,  8th  ed.,  1850,  vol.  i.,  pp.  427,  428. 
See  part  of  report  and  resolutions  of  Virginia  in  Mr.  Pinkney's 
argument  in  Cohens  z/j.  Virginia,  6  Wheaton,  Rep.,  264. 


SUPREMACY  OF  CONSTITUTION. 


123 


January,  1810,  only  ten  years  after  her  own 
resolutions  and  explanations,  Virginia,  instead 
of  giving  countenance  to  the  nullification 
doctrine  of  Kentucky,  and  replying  to  Penn- 
sylvania that,  as  a  State,  a  party  making  the 
compact,  you  have  a  right  to  judge  whether 
the  United  States  exceeds  its  authority,  de- 
clared that  a  fit  tribunal  for  the  trial  of  ques- 
tions between  the  States  and  the  United  States 
existed  in  the  Supreme  Court  of  the  United 
States,  and  that  a  better  one  could  not  be  cre- 
ated. This  should  be  conclusive  that  Virginia 
republicanism  in  no  way  countenanced  nullifi- 
cation. 

Immediately  after  the  commencement  of  his 
administration,  Jefferson,  and  Madison,  the  Sec- 
retary of  State,  entered  into  negotiations  with 
France  for  the  acquisition  of  the  province  of 
Louisiana  and  the  immense  territory  belonging 
to  it.  The  purchase  was  completed  early  in 
1803,  and  by  it  and  for  all  time  the  power  of 
the  old  States  in  the  Union  was  diminished. 
Even  a  liberal  constructionist  might  have  hesi- 
tated as  to  its  constitutionality.  Jefferson 
himself  had  his  doubts.  Neither  he,  however, 
nor  any  of  his  party  took  any  measures  to  have 
an  amendment  of  the  Constitution  to  sanction 
it.  It  was  indeed  a  measure  of  vital  necessity, 
and  acquiesced  in  by  the  people  of  all  the  States 
as  such. 

In  the  national  convention  Gouverneur  Morris 
said  that  the  fisheries  and  the  Mississippi  were 


124  NULLIFICATION,    SECESSION. 

the  two  great  objects  of  the  Union.1  Negotia- 
tions with  Spain  with  reference  to  the  naviga- 
tion of  the  Mississippi  were  constantly  before 
the  Congress  of  the  Confederacy  in  1787,  this 
river  being  the  only  outlet  for  the  products  of 
Kentucky,  Tennessee,  and  of  parts  of  Western 
Virginia  and  Pennsylvania,  as  well  as  of  the 
great  then  unsettled  country  beyond.  There 
was  a  fear  that  the  inhabitants  of  this  western 
territory  might  ally  themselves  with  Great 
Britain,  because  of  her  power  to  compel  Spain 
to  grant  the  right  of  way  to  the  sea  ;  for  it  was 
recognized  that  the  inhabitants  of  that  country 
would  and  must  be  a  part  of  the  power  that 
held  the  mouth  of  the  great  river.  More  than 
this,  the  Constitution  itself  provides  for  the 
admission  of  new  States,  and  the  annexation  of 
Canada  had  been  contemplated  in  the  articles 
of  the  Confederacy. 

Josiah  Quincy's  speech,  in  1811,  when  the 
admission  of  Louisiana  as  a  State  came  up,  is 
often  quoted  by  Southern  writers  as  justifying 
secession.  He  said  :  "  If  this  bill  passes,  it  is 
my  deliberate  opinion  that  it  is  virtually  a  dis- 
solution of  this  Union  ;  that  it  will  free  the 
States  from  their  moral  obligation  ;  and  as  it 
will  be  the  right  of  all,  so  it  will  be  the  duty  of 
some,  definitely  to  prepare  for  a  separation, — 
amicably  if  they  can,  violently  if  they  must." 

This  declaration  does  not  contain  any  claimed 
right  of  a  State  as  a  party  to  a  compact  to  judge 
1  5  Elliot,  526. 


S  UP  R  EM  A  CY  OF  CONSTITUTION,        1 2  5 

whether  it  has  been  broken,  or  of  a  sovereign 
State  to  secede.  It  is  an  assertion  that  the 
government  or  nation  was  so  changed  by  the 
annexation  of  Louisiana  as  a  State,  from  terri- 
tory formerly  no  part  of  the  Union,  that  the 
other  States  had  a  right  to  break  it  up.  This 
opinion  was  not  concurred  in  by  the  Governor 
or  Legislature  or  State  of  Massachusetts, 
which  assented  to  the  admission  of  Louisiana.1 
Quincy's  declaration  contains  no  assertion  of 
the  sovereignty  of  a  State,  or  right  to  secede  at 
will.  It  admits  that  separation,  unless  assented 
to,  must  be  by  force. 

It  is  impossible  to  reconcile  the  doctrine  of 
the  Kentucky  resolutions  with  those  of  Jeffer- 
son in  his  inaugural  and  with  his  whole  policy 
during  his  term  as  President.  They  are  funda- 
mentally different.  It  must  be  remembered 
that  his  authorship  of  the  Kentucky  resolutions 
was  not  then  known. 

There  are  many  followers  and  admirers  of 
Jefferson  who  maintain  that  he  did  not  take 
the  same  view  of  the  Kentucky  resolves  as  the 
nullifiers  of  South  Carolina.  Robert  J.  Walker, 
the  distinguished  financier  and  Secretary  of  the 
Treasury  in  Folk's  time,  in  an  article  on  nulli- 
fication and  secession,  in  the  February  number 
of  the  Continental  Monthly,  published  at  Phila- 
delphia in  1863,  gives  what  he  alleges  are  Jef- 
ferson's views,  and  says  that  they  were  opposed 
to  nullification  and  secession.  Indeed,  the 

1  H.  Adams'  History,  vol.  v.,  p.  326. 


126  NULLIFICATION,    SECESSION. 

Kentucky  resolves  do  not  claim  the  right  of 
secession  ;  they  do  not  follow  out  their  prem- 
ises to  its  logical  conclusion.  They  do  not 
declare  or  recommend  that  the  State  should 
treat  the  Alien  and  Sedition  laws  as  null  and 
void,  though  in  their  reply  to  the  other  States 
they  say  a  nullification  is  "  the  rightful 
remedy."  They  carefully  let  it  be  known 
they  only  protest.  That  Jefferson  did  not 
carry  this  theory  of  the  Kentucky  resolutions 
to  the  right  of  secession,  is  perhaps  shown  by 
his  correspondence  when  the  acceptance  of  the 
Constitution  was  pending  in  Virginia.  Even  at 
the  time  of  the  Kentucky  resolutions  he  speaks 
of  the  "  scission  "  of  the  States,  and  about 
1820,  during  the  period  of  the  Missouri  dis- 
pute, he  again  alludes  to  the  "  scission,"  if  it 
should  come,  as  geographical.  He  would  hard- 
ly have  used  this  word,  implying  a  cutting  or 
tearing  asunder,  if  he  had  believed  in  a  right 
of  secession. 

Jefferson  had  not  the  cool,  dispassionate 
judgment  of  Washington.  He  was  a  violent 
partisan.  He  believed  the  federalists  were 
striving  for  a  monarchy ;  he  spoke  of  the 
great  Chief-Justice  Marshall,  when  he  disagreed 
with  a  decision  made  by  him,  as  a  sly  old  fox. 
Both  Jefferson  and  Madison  were  displeased 
with  the  rulings  of  Marshall  on  the  trial  of  Burr 
for  treason.  The  reason  of  their  displeasure 
was  the  strict  construction  the  Chief  Justice 
gave  to  the  law  punishing  that  offence,  not  the 


SUPREMACY  OF  CONSTITUTION.         127 

too  liberal  wielding  of  the  judicial  powers. 
The  enactment  of  the  Alien  and  Sedition 
laws  and  their  enforcement  were  to  Jefferson 
outrageous  violations  of  liberty,  and  of  the 
very  amendments  to  the  Constitution  for 
which  Virginia  and  Massachusetts  and  New 
York  had  been  so  persistent.  He  believed 
that  the  federal  party  was  determined  to 
keep  possession  of  the  government  by  crush- 
ing out  the  freedom  of  the  press  and  the  peo- 
ple. To  oppose  this,  to  prevent  what  he 
thought  was  a  tyrannical  abuse  of  authority 
with  the  intent  of  perpetuating  itself,  he  was 
willing  to  put  to  question  the  fundamental 
authority  of  the  government  to  pull  down  the 
whole  structure.  He  found  that  his  own  State, 
Virginia,  did  not  acquiesce  in  the  doctrines  of 
Kentucky.  By  a  letter  of  his  of  the  date  of 
November  17,  1798,  it  appears  he  sent  a  draft 
of  the  Kentucky  resolutions  to  Madison,  say- 
ing that  we  should  distinctly  affirm  all  these 
important  principles,  not  however  stating  that 
he  was  the  author.  When  he  came  into  power, 
if  he  thought  of  the  matter  at  all,  he  must 
have  seen  that  the  practice  of  nullification 
would  be  the  end  of  all  United  States  govern- 
ment. What  these  resolutions  actually  were 
had  apparently  not  been  understood  by  the 
other  States.  Madison,  his  Secretary  of  State, 
who  always  maintained  the  supremacy  of  the 
General  Government,  was  his  dear  friend  and 
undoubtedly  then,  as  in  after  years,  his  adviser. 


128  NULLIFICATION,    SECESSION. 

Nor  was  his  change  of  principles,  if  there  were 
any  change,  more  strange  than  his  change  of 
dress.  Mr.  Adams  tells  us  he  began  his  admin- 
istration by  receiving  the  gorgeously  dressed 
foreign  ministers  in  his  threadbare  coat,  old 
much  soiled  corduroy  small  clothes,  faded  by 
many  washings,  and  slippers  without  heels ; 
for  these  clothes  he  afterwards  substituted  a 
dress  of  black,  clean  linen,  and  powdered  hair. 
Is  it  Carlyle  that  says  that  clothes  and  prin- 
ciples are  the  same — that  they  make  the  man  ? 
That  Jefferson  ever  afterwards  believed  in 
the  nationality  of  the  Union,  is  shown  by  his 
administration  and  correspondence,  and  made 
evident  by  his  acts  in  the  crowning  work  of  his 
life,  the  establishing  of  the  University  of  Vir- 
ginia. That  he  was  the  founder,  he  directed 
should  be  inscribed  on  the  monument  over  his 
grave.  In  Charlottesville,  where  the  moun- 
tains of  the  Blue  Ridge  come  down  to  the 
plains  that  stretch  many  miles  to  the  sea,  was 
Monticello,  Jefferson's  charming  home,  the 
seat  of  his  unbounded  hospitality,  and  close 
to  that  of  Madison.  Near  by  amongst  the 
rolling  hills,  most  picturesquely  placed  by  the 
direction  of  Jefferson,  are  the  pleasing  collo- 
naded  buildings  of  the  University,  planned  by 
his  own  hand.  It  is  the  University's  boast,  but 
questioned  by  Harvard  College,  that  Jefferson 
introduced  there  the  system  of  elective  studies, 
that  is  now  spreading  so  widely.  There  were 
but  four  things  that  Jefferson  declared  should  be 


SUPREMACY  OF  CONSTITUTION. 


129 


obligatory  to  the  University :  one  was  the  study 
of  the  Federalist, — the  work  of  Hamilton, 
Madison,  and  Jay,  expounding,  the  national 
doctrines  of  the  founders  of  the  Republic,  with 
no  countenance  of  those  of  the  Kentucky 
resolutions.  To-day  Jefferson's  directions  are 
observed,  and  the  Federalist  remains  the  text- 
book.1 

No  President  until  Lincoln,  save  perhaps 
Madison  in  his  first  administration,  had  so 
troublesome  a  time  as  Jefferson  in  his  second 
term  of  office.  The  rights  of  the  United  States, 
a  small,  weak  power,  were  not  only  disregarded 
by  England  and  France  in  their  deadly  struggle, 
but  decrees  were  issued  confiscating  property 
and  vessels  engaged  in  what  by  the  laws  of 
nations  is  now  universally  held  to  be  a  lawful 
trade.  Great  Britain  impressed  sailors  from 
American  vessels,  and  one  of  her  men-of-war 
arrogantly  fought  and  captured  a  smaller  United 
States  frigate,  killing  and  wounding  many  of 
her  crew,  and  taking  from  the  disabled  ship  her 
claimed  subjects. 

Jefferson's  great  panacea  to  cure  these  evils 
and  to  bring  England  and  France  to  respect 
and  grant  our  rights  was  the  forcing  of  non- 

1  See  No.  LXXX.  of  the  Federalist  for  Hamilton's  clear  and 
able  statement  of  the  powers  of  the  judicial  department.  He 
says  it  is  a  political  axiom,  that  the  judicial  power  of  a  gov- 
ernment should  be  co-extensive  with  its  legislative,  and  that 
the  government  should  and  did  have  the  power  over  States 
and  their  judiciary  in  all  cases  arising  under  the  Constitution 
and  United  States  laws. 
9 


I3O  NULLIFICATION,   SECESSION. 

intercourse  on  the  high  seas  between  the  United 
States  and  all  foreign  countries — an  embargo 
on  all  shipping.  By  virtue  of  the  power  in  the 
Constitution  to  regulate  commerce,  Jefferson 
and  his  party  destroyed  it.  The  vessels  were 
left  rotting  at  the  wharves,  and  ship-building 
and  the  many  industries  depending  upon  it  and 
the  sale  of  the  products  of  the  country  abroad 
were  stopped.  The  New  England  States  suf- 
fered particularly  by  this  arbitrary  decree  ;  they 
had  an  extensive  and  flourishing  neutral  com- 
merce ;  their  merchants  had  amassed  great 
wealth.  They,  as  Mr.  Webster  said,  brought 
the  matter  to  trial  before  the  United  States 
Court ;  the  case  was  decided  against  them,  and 
they  submitted.  No  Northern  State  passed  any 
resolutions  affirming  the  doctrine  of  its  sover- 
eignty and  its  right  to  judge  of  what  seemed  to 
many  "  a  deliberate,  palpable,  and  dangerous 
exercise  of  powers  not  granted  "  by  the  Consti- 
tution. Instead  of  asserting  sovereignty  to 
judge,  the  Massachusetts  Legislature  passed  in 
1809  a  resolve  proposing  an  amendment  of  the 
Constitution  prohibiting  the  laying  of  an 
embargo  beyond  a  limited  period.  The  meas- 
ure failed  because  of  not  obtaining  the  consent 
of  the  other  States. 

It  is  always  to  be  carefully  borne  in  mind 
that  the  declarations  of  Quincy,  Pickering,  and 
Griswold,  brought  forward  by  Southern  writers, 
favoring  or  threatening  a  separation,  were  never 
made  on  the  ground  of  the  sovereignty  of  a 


SUPREMA CY  OF  CONSTITUTION.        1 3 1 

State  and  its  right  to  secede.  The  doctrine  of 
those  who  held  the  most  extreme  opinions  was 
that  the  policy  and  acts  of  the  general  govern- 
ment were  so  tyrannical  and  oppressive  that 
the  eastern  commercial  States  were  justified  in 
rebellion  and  in  separating  themselves  from  the 
more  southern  States,  where  the  political  party 
was  dominant,  that  had  most  grievously  op- 
pressed and  impoverished  them  and  annihilated 
their  commerce  in  a  futile  attempt  to  injure 
Great  Britain.  This  was  not  a  claim  of  right  to 
leave  the  Union  and  dissolve  it  at  pleasure. 
Indeed,  when  the  leaders  went  too  far  in  their 
discontent,  the  people  of  the  Eastern  States 
would  sometimes  elect  governors  and  represen- 
tatives of  the  Republican  party.  The  spirit  of 
loyalty  to  the  Union  and  the  love  of  a  common 
country  would  always  spring  up  and  assert 
itself  when  it  came  to  the  question  of  disunion 
and  treason. 

Towards  the  close  of  the  war  of  1812  there 
was  great  discontent  at  the  failure  of  the  gov- 
ernment to  repel  the  English  forces  from  Maine, 
then  a  portion  of  Massachusetts.  Troops  raised 
in  that  State  were  sent  to  the  defence  of  our 
more  western  Canadian  boundary.  Beyond  the 
discontent,  there  was  some  disloyalty.  At  this 
time  the  Hartford  convention  was  called  by 
Massachusetts.  That  convention  did  not  even 
pass  resolutions  of  hostility  to  the  Union.  The 
convention  was  called  to  devise  means  of  security 
and  defence  "  not  repugnant  to  their  obligations 


132  NULLIFICATION,    SECESSION. 

as  members  of  the  Union,"  and,  according  to 
Mr.  Lodge,  Josiah  Quincy  was  not  made  a 
delegate  by  reason  of  his  extreme  views.1  The 
convention  neither  asserted  nor  suggested  nul- 
lification or  secession,  but  proposed  amendments 
to  the  Constitution.  Its  recommendations  were 
of  no  particular  importance.2  The  only  persons 
who  were  affected  by  its  doings  were  the  mem- 
bers, who  ever  afterwards  suffered  politically 
from  a  taint  of  disloyalty.  Peace  soon  came 
and  terminated  the  oppressive  grievances  and 
removed  the  discontent. 

Not  only  as  stated  in  the  beginning  of  this 
article  is  the  Hartford  convention  with  the  Ken- 
tucky and  Virginia  resolutions  brought  forward 
by  Mr.  Lodge  in  proof  of  the  weakness  of  the 
Union,  but  Southern  orators  and  writers  delight 
in  referring  to  that  convention  in  justification 
of  nullification  and  secession'.  We  have  the 
journal  of  the  proceedings,  of  the  motions  made 
and  votes  passed.  Is  it  not  the  strongest  proof 
possible  of  the  universal  belief  in  the  nation- 
ality of  our  government  that  nobody,  in  that 
body  of  malcontents,  suggested  that  any  right 
existed  to  refuse  an  obedience  to  the  laws  and 
policy  of  the  administration  they  deemed  so 
oppressive  ? 

After  the  purchase  of  Louisiana  came  that  of 
Florida,  also  enlarging  the  territory  of  the 
Union  and  curtailing  the  relative  power  in  it 

1  Lodge's  Life  of  George  Cabot,  p.  518. 

2  History  of  Hartford  Convention,  by  Theo.  Dwight. 


SUPREMACY  OF  CONSTITUTION. 


133 


of  each  of  the  old  States.  The  charter  of  a 
second  United  States  Bank  was  granted  by  the 
party  that  in  the  first  Congress  had  opposed  it 
and  claimed  to  be  strict  constructionists  of  the 
Constitution.  Madison  justified  his  assent  on 
the  ground  of  the  general  approval  and  the 
opinion  of  the  Supreme  Court  establishing  its 
constitutionality.1  Historically  there  is  no  at- 
tempt to  maintain,  no  assertion  of,  the  doctrine 
of  the  Kentucky  resolutions  from  the  time  they 
were  passed  until  the  debate  in  the  Congress 
of  1830.  The  only  trace  of  them  is  in  the  reso- 
lutions frequently  passed  by  the  Legislatures  of 
States,  which  are  mere  opinions  beyond  their 
legislative  powers,  that  certain  laws  of  the  gov- 
ernment were  unconstitutional  and  therefore 
null  and  void.  If  unconstitutional,  they  were 
and  are  null  and  void,  but  no  State  ever  treated 
them  as  null  and  void.  The  United  States 
Government,  by  its  judiciary,  however,  took 
cognizance  of  all  State  laws  in  conflict  with 
its  laws  and  authority,  and  maintained  uni- 
formly its  national  supremacy. 

1  Madison's  letter,  4  Elliot's  Debates,  615. 


CHAPTER  VI. 

CALHOUN,  JACKSON,  AND    NATIONAL   GOVERN- 
MENT. 

IN  1811,  John  C.  Calhoun  of  South  Carolina, 
a  young  man  not  of  the  age  of  thirty  years, 
took  his  seat  as  a  member  of  the  national  House 
of  Representatives,  and  at  once  became  a  leader 
in  public  affairs.  He  was  one  of  the  Commit- 
tee on  Foreign  Relations.  On  the  I2th  of  De- 
cember he  said  what  was  the  road  the  nation 
should  tread  "  to  make  it  great  and  to  produce 
in  this  country  not  the  form' but  the  real  spirit 
of  union."  '  In  March,  1815,  he  voted  for  a  high 
tariff  and  said  :  "  He  believed  the  policy  of  the 
country  required  protection  to  our  manufactur- 
ing establishments."  *  He  also  reported  the 
bill  to  incorporate  a  United  States  Bank,  and 
supported  it  in  a  speech  on  its  constitutionality.3 
Webster,  on  the  contrary,  opposed  the  tariff 
bills,  not  however  on  the  ground  of  their  un- 
constitutionally. In  December,  1816,  Calhoun 

1  H.  Adams,  vol.  vi.,  p.  143. 

8  H.  Adams,  vol.    ix.,  p.  115.  Annals  of  Congress,  1815- 
1816,  p.  1272. 

8  H.  Adams,  vol.  ix.,  p.  116. 

134 


CALHOUN.  135 

moved  "  that  a  committee  be  appointed  to  in- 
quire into  the  expediency  of  setting  apart  a 
permanent  fund  for  internal  improvement  ".;  on 
December  23d,  he  reported  a  bill  setting  aside 
the  bonus  paid  by  the  United  States  Bank,  $i,- 
500,000  and  future  dividends  from  bank  stock, 
"  as  a  fund  for  constructing  roads  and  canals." 
In  his  speech  supporting  it  he  said  :  "  that  the 
extent  of  our  republic  exposes  us  to  the  greatest 
of  all  calamities,  next  to  the  loss  of  liberty,  and 
even  to  that  in  its'  consequences,  disunion." 
"  Probably  not  more  than  twenty-five  or  thirty 
members,  in  the  total  number  of  one  hundred 
and  seventy,  regarded  the  constitutional  diffi- 
culty as  fatal  to  the  bill.  "  *  Madison,  however, 
consistent  and  persistent  in  his  strict  construc- 
tion of  the  Constitution,  vetoed  it. 

In  1819  and  1820  came  the  admission  of  Mis- 
souri and  the  struggle  over  the  extension  or 
restriction  of  slavery.  The  Southern  statesmen 
feared  that  the  South  was  losing  its  relative  im- 
portance in  the  Union.  Even  those  of  Virgi- 
nia, who  had  formerly  been  opposed  to  slavery, 
now  took  the  opposite  view,  and  the  Legislature 
of  that  State  passed  resolutions  for  the  admis- 
sion of  Missouri  with  slavery.  The  increase  in 
the  production  of  cotton  had  made  the  raising 
of  slaves  profitable.  The  controversy  was  set- 
tled by  the  bill  called  the  Missouri  Compromise, 

1  H.  Adams,  vol.  ix.,  p.  148. 

*  See  H.  Adams,  vol.  ix,  pp.  149  to  153,  for  debate  and 
Calhoun's  views. 


136  NULLIFICATION,    SECESSION. 

admitting  Missouri  with  slavery,  and  excluding 
slavery  from  all  the  rest  of  the  country  west  of 
that  State  and  north  of  36°  30',  the  southern 
boundary  of  Missouri.  This  was  the  first  im- 
portant controversy  dividing  the  States  geo- 
graphically. It  was  the  division  that  Mason, 
Madison,  and  others  foresaw  in  the  convention 
that  made  the  Constitution ;  not  a  com- 
bination of  the  great  States  against  the 
small,  but  geographical,  between  the  South 
and  the  North,  the  planting  and  commer- 
cial States,  and,  underlying  this  and  more 
potent,  the  institution  of  slavery  repugnant  to 
the  North  and  existing  only  in  the  South. 

It  was  this  difference  of  interest  between  the 
two  sections  that  brought  Calhoun  to  a  change 
of  opinion  on  the  great  industrial,  commercial, 
and  moral  questions  that  had  arisen.  His  con- 
victions followed  what  he  wished  to  believe  : 
not  an  unusual  temperament.  From  a  protec- 
tionist he  became  the  zealous  advocate  of 
extreme  free  trade,  from  a  nationalist  to  the 
belief  that  the  Union  was  nothing  but  a  league 
any  State  could  break  at  its  will,  from  hold- 
ing slavery  to  be  a  moral  evil  to  the  support  of 
it  as  a  divine  institution.  In  1837,  after  the 
nullification  controversy,  when  he  introduced 
resolutions  in  the  Senate  as  to  slavery,  he  said  : 

"  This  question  has  produced  one  happy  effect,  at  least  it  has 
compelled  us  of  the  South  to  look  into  the  nature  and  character 
of  this  great  institution  (slavery),  and  to  correct  many  false 
impressions  that  even  we  had  entertained  in  relation  to  it. 


CALHOUN.  137 

Many  in  the  South  once  believed  that  it  was  a  moral  and 
political  evil.  That  folly  and  delusion  are  gone.  We  see  it 
now  in  its  true  light,  and  regard  it  as  the  most  safe  and  stable 
basis  for  free  institutions  in  the  world.  It  is  impossible  with 
us  that  the  conflict  take  place  between  labor  and  capital." 

He  went  so  far  as  to  say  a  mysterious  Provi- 
dence had  brought  together  two  races  from 
different  portions  of  the  globe  and  placed  them 
together  in  equal  numbers  in  the  southern  por- 
tion of  the  Union.  To  which  Clay  forcibly 
replied,  "  to  call  a  generation  of  slave-hunting 
pirates  (who  brought  the  negroes  to  this  coun- 
try) a  mysterious  Providence,  was  an  insult  to 
the  Supreme  Being." ' 

Calhoun  and  many  of  the  leaders  and  politi- 
cians of  the  cotton-raising  States  saw  that  they 
were  losing  their  relative  importance  in  popu- 
lation and  wealth  ;  they  believed  that,  with  free 
trade  bringing  to  them  everything  they  consumed 
at  a  lower  price,  their  products  and  profits  would 
be  increased.  South  Carolina  with  Calhoun  as 
the  master  spirit  was  the  leader  in  this  matter  ; 
the  existing  protective  tariff  bearing  hardly  on 
the  plantation  States  was  in  their  opinion  the 
great  hindrance  to  their  prosperity.  It  was  not 
difficult  for  them  to  come  to  the  conclusion 
it  was  a  tyrannical  and  palpable  violation  of 
the  Constitution.  Seeing  that  they  could  not 
bring  the  majority  in  Congress  to  their  belief, 
the  South  Carolinian  politicians  revived  and 
developed  the  doctrine  of  the  Kentucky  reso- 

1  Oliver  Dyer's  Great  Senators,  pp.  183,  184. 


138  NULLIFICATION,    SECESSION. 

lutions  of  the  sovereignty  of  each  State,  and 
of  its  right  as  a  sovereign  to  judge  of  the  con- 
stitutionality of  an  act  of  the  United  States.  A 
convention  of  the  people  of  the  State  was 
called,  and  under  the  claimed  right  of  sover- 
eignty the  convention,  on  the  24th  of  Novem- 
ber, 1832,  passed  an  ordinance  in  which  it  was 
declared  the  tariff  laws  of  the  United  States 
were  null  and  void,  and  that  no  duties  imposed 
by  the  United  States  should  be  collected  after 
the  first  of  February,  A.  D.  1833.  The  conven- 
tion further  declared  that  they  would  resist  any 
acts  of  the  United  States  to  collect  its  duties 
or  to  coerce  the  State  into  paying  them,  and 
that  such  acts  of  the  United  States  would  ab- 
solve the  people  of  the  State  from  any  political 
connection  with  the  people  of  the  other  States, 
and  that  the  State  would  organize  as  a  sover- 
eign independent  government. 

Thus  South  Carolina,  more  than  forty  years 
after  the  adoption  of  the  Constitution,  was  the 
first  State  that  assumed  to  act  as  a  distinct 
sovereign  power.  To  such  a  degree  did  the 
confidence  of  the  State  in  its  own  prowess  and 
a  spirit  of  rash  defiance  of  the  United  States 
exist,  that  upon  Governor  Haynes'  return  to 
Charleston  from  the  State  Capital,  the  horses 
were  taken  from  his  carriage  and  the  citizens 
dragged  him  in  triumph  through  the  streets. 

Few  leaders  have  had  more  warm  admirers 
than  Calhoun.  Oliver  Dyer  in  his  Great  Sena- 
tors, tells  us  he  was  tall  and  gaunt,  his  com- 


CALHOUN.  139 

plexion  dark  and  Indian-like.  Eyes  large, 
black,  piercing,  scintillant  ;  his  iron-gray  hair 
hung  down  in  thick  masses.  He  was  remark- 
able for  the  exceeding  courtesy  of  his  demeanor 
and  for  the  sweetness  and  bell-like  resonance 
of  his  voice.  His  private  life,  what  could  not 
be  said  of  most  of  his  contemporaries,  was 
unimpeachable. 

His  followers  are  fond  of  praising  his  "  inex- 
orable logic."  They  probably  called  it  so  be- 
cause he  did  not  hesitate  to  carry  out  his 
reasoning  to  the  extremest  extravagance  of 
conclusions.  In  his  speech  in  1833,  in  reply  to 
Webster,  he  admitted  that  this  sovereignty  of 
each  State,  there  being  four  and  twenty  of 
them,  did  give  each  State  a  separate  right  to 
judge  of  a  law  of  Congress,  "  four  and  twenty 
vetoes."  He  instanced  with  approval  the  gov- 
ernment of  Rome,  where  the  plebeians  and 
patricians  could  check  and  overrule  each  other 
through  the  tribunes  and  the  Senate.  He 
knew  "  nowhere,  no  case  in  history  where  the 
power  of  arresting  of  government  was  too 
strong,  except  in  Poland,  where  every  freeman 
possessed  a  veto."  But  even  there  he  speaks 
of  it  with  favor,  as  the  source  of  "  the  highest 
and  most  lofty  attachment  to  liberty."  He 
overlooked  that  Rome's  plebeian  veto  produced 
a  Sulla  and  a  Caesar  and  ended  in  an  absolute 
despotism  over  an  abject  people,  and  that  the 
government  of  Poland,  unstable  as  water,  van- 
ished from  the  face  of  the  earth.  He  spoke  of 


140  NULLIFICATION,    SECESSION. 

this  country  as  sunken  into  avarice,  intrigue, 
and  electioneering,  from  which  only  an  opposi- 
tion like  Carolina's  could  arouse  it.  Afterwards, 
in  1850,  he  said  :  "  What  was  once  a  constitu- 
tional federal  republic  is  now  converted,  in 
reality,  into  one  as  absolute  as  that  of  the 
autocrat  of  Russia,  and  as  despotic  in  its  tend- 
ency as  any  absolute  government  that  ever 
existed."  And  yet  many  people  of  the  South 
believed  or  brought  themselves  to  believe  this, 
and  most  of  their  writers  now  arguing  for  State 
sovereignty  profess  the  same  opinion. 

Following  up  Calhoun's  "  inexorable  logic," 
that  each  State  has  a  right  to  pass  its  judgment 
on  any  act  and  law  made  by  the  United  States, 
and  to  decide  whether  it  is  invalid  and  null,  if 
it  be  of  opinion  that  it  exceeds  the  delegated 
authority,  every  citizen  of  South  Carolina  or  of 
any  other  State  has  a  right  "to  judge  whether 
any  law  of  that  State  be  invalid  or  null,  as  ex- 
ceeding its  delegated  authority.  For  the  State 
of  South  Carolina  under  its  Constitution,  like 
the  United  States  under  its  Constitution,  has 
only  a  limited  delegated  authority,  and  the 
sovereignty,  according  to  all  the  political  writ- 
ers, remains  in  its  people  or  voting  citizens. 
Why  cannot  a  voting  citizen,  or  one  of  the 
people  of  the  State,  maintain  that,  possessing 
the  sovereign  right  of  all  power,  and  being  one 
of  the  parties  who  made  the  compact  of  the 
State  constitution,  he  can  judge  as  to  whether 
he  has  delegated  the  power  to  make  a  certain 


JACKSON.  141 

law  ;  and  if  he  thinks  he  has  not,  why  cannot 
he  defy  the  court  and  the  State  that  undertakes 
to  execute  it  ?  This  would  at  once  put  the  State 
in  the  happy  condition  of  Poland,  and  almost 
allow  the  freedom  claimed  by  a  Chicago  anar- 
chist. The  answer  is  evident,  the  citizens  owe 
an  obedience  to  the  laws  that  they  establish 
over  themselves.  They  have,  for  the  benefit 
of  all,  given  to  the  judiciary  the  right  to  judge 
of  the  extent  of  the  delegated  power.  That 
the  doctrine  of  State  sovereignty  was  unknown 
at  the  time  South  Carolina  promulgated  it,  is 
proved  by  Jackson's  proclamation.  In  it  he 
speaks  of  the  hardness  and  inequality  of  the  ex- 
cise law  in  Pennsylvania,  the  embargo  and  non- 
intercourse  law  in  the  Eastern  States,  the  car- 
riage tax  in  Virginia.  All  these  laws  and  the 
war  of  1812  in  the  commercial  States  were, 
he  says,  deemed  unconstitutional,  but  yet 
they  were  submitted  to,  and  this  remedy  of 
nullification  and  secession  was  not  suggested. 
"  The  discovery  of  this  important  feature  in 
our  Constitution  was  reserved  to  the  present 
day.  To  the  statesmen  of  South  Carolina  be- 
longs the  invention."  '  Indeed  it  was  a  ques- 
tion in  South  Carolina  itself  who  first  discov- 
ered this  doctrine  of  nullification.  Dr.  Thomas 
Cooper,  Jefferson's  old  friend,  was  agreed  upon 
as  the  author  of  its  revival,  and  was  toasted  as 
the  father  of  nullification  at  Columbia,  the 
capital  of  South  Carolina,  at  a  Fourth  of  July 
1  4  Elliot,  584. 


142  NULLIFICATION',    SECESSION. 

dinner1  in  1833.  If  the  Kentucky  resolutions 
and  the  doctrine  of  nullification  had  not  been 
dead,  and  buried  in  oblivion,  it  is  impossible 
that  Chief-Justice  Marshall  should  have  an- 
nounced in  the  case  of  McCulloch  against  the 
State  of  Maryland  that  there  was  a  universal 
assent  to  the  proposition  that  the  government 
of  the  Union,  though  limited  in  its  powers, 
was  supreme  in  its  sphere ;  that  General  Jackson, 
in  a  proclamation  to  the  whole  country,  could 
have  declared  its  discovery  was  made  by  the 
statesmen  of  South  Carolina  of  that  day ;  and 
that  the  nullifiers  of  South  Carolina  should 
have  toasted  Cooper  as  its  author. 

We  have  found  nowhere  any  claim  of  a  right 
of  secession,  not  even  the  use  of  the  word, 
until  the  threat  of  South  Carolina's  nullifica- 
tion. Any  separation  before  was  considered  as 
a  disruption  of  the  Union.  Jefferson  spoke  of 
it  as  scission.  While  some  hold  that  Jackson 
"  with  his  iron  heel  crushed  out  secession," 
numerous  attempts  have  been  made,  even  re- 
cently, to  prove  that  Jackson  was  not  opposed 
to  nullification,  that  in  reality  the  proclamation 
was  not  his  but  was  Edward  Livingston's. 
Parton,  Jefferson's  biographer,  tells  us,  when  a 

1  Niles'  Register,  p.  335,  July  20,  1833.  Cooper  was  Presi- 
dent of  the  University  of  South  Carolina.  The  University  of 
Virginia  would  not  have  him  as  professor  on  account  of  his 
Unitarian  belief,  though  Jefferson  wished  it.  Is  it  possible 
that  he  was  the  original  author  of  the  Kentucky  Resolutions, 
and  furnished  them  to  Jefferson  ?  Jefferson's  correspondence, 
as  far  as  we  have  examined,  shows  no  belief  in  that  doctrine. 


JACKSON.  143 

pamphlet  containing  the  proceedings  of  South 
Carolina  reached  Jackson,  he  went  to  his  office 
and  began  to  dash  off  page  after  page  of  the 
proclamation.  To  this  was  added  many  more 
of  notes  and  memoranda  which  he  had  been 
accumulating.  The  papers  were  given  to  Mr. 
Livingston  to  draw  up  in  proper  form.  In  three 
or  four  days  Livingston  gave  to  Jackson  a  draft 
of  the  proclamation  for  examination.  Jackson 
said  that  Livingston  had  not  correctly  under- 
stood his  notes  and  suggested  alterations,  and 
had  them  made.1 

The  proclamation,  whoever  wrote  it,  is  a 
clear,  strong  statement  of  the  nature  of  our 
Union  and  its  nationality  ;  an  abler  production 
than  Edward  Livingston's  speech,  when  as  Sen- 
ator he  spoke  on  this  matter  in  1830.  If  Jack- 
son did  not  write  a  line  of  it  he  was  not  totally 
wanting  in  knowledge  and  comprehension,  and 
must  have  understood  the  most  important 
question  that  had  arisen  in  his  administration 
or  in  any  administration  since  the  inception  of 
the  government. 

Jackson,  as  well  as  Calhoun,  was  of  the  Pro- 
testant Scotch-Irish  race,  that  famous  strain  of 
blood  that  settled  around  Belfast  and  has  made 
its  mark  in  this  country.  Those  who  knew 
him  well  said  that  he  had  the  craftiness  of  his 
canny  Scotch  ancestors,  which  he  often  con- 
cealed under  apparently  unpremeditated  and 
ungovernable  bursts  of  temper.  No  one  before 
1  Parton's  Life  of  Jackson,  vol.  iii.,  p.  466. 


144  NULLIFICATION,    SECESSION. 

who  had  been  a  duellist  and  had  killed  his  op- 
ponent, and  had  been  a  participator  in  street 
brawls  and  encounters,  had  become  President. 
He  was  a  warm  friend  and  a  bitter  enemy,  and 
against  Calhoun  he  had  a  lasting  grievance. 
His  declaration,  "  I  take  the  responsibility," 
was  characteristic  of  the  man  and  admired  by 
his  adherents.  No  one  of  a  will  so  indomitable 
ever  came  to  the  presidency.  A  mere  boy  of 
fourteen  he  fought  in  the  revolutionary  war. 
He  studied  law  in  North  Carolina  and  at  the 
age  of  twenty-two  years  he  commenced  his  pro- 
fessional life  in  Tennessee,  and  acquired  at  once 
a  large  practice  throughout  the  State,  that 
brought  him  into  public  notice.  He  was  the 
district  attorney  of  the  territory,  and  a  member 
of  the  convention  that  made  the  constitution 
of  that  State,  and  as  its  first  representative  in 
Congress  opposed  Washington's  administration, 
and  was  one  of  the  twelve  members  who  would 
not  join  in  the  vote  of  thanks  to  him  when 
he  retired  from  the  presidency.  He  was  elected 
Senator  in  1797  and  opposed  the  administration 
of  John  Adams,  but  soon  resigned  the  senator- 
ship  and  became  a  judge  of  the  Supreme  Court 
of  Tennessee  and  held  that  office  for  six  years. 
He  was  of  the  party  of  strict  constructionists. 
As  President  he  vetoed  bills  for  the  aid  of  the 
Maysville  and  Lexington  Road,  a  re-charter  of 
the  Second  Bank  of  the  United  States,  and 
several  bills  for  internal  improvements  for  har- 
bors and  rivers. 


JACKSON.  145 

However  much  Livingston  may  have  im- 
proved the  style  of  the  proclamation,  or  con- 
tributed to  its  argument,  there  can  be  no  doubt 
that  the  reasoning  and  principles  were  Jackson's. 
The  public  seems  to  have  forgotten  that  he  was 
a  lawyer  of  large  experience  in  his  younger 
days,  and  an  active  politician  all  his  lifetime. 
The  proclamation  was  on  a  subject  of  which  he 
had  full  knowledge  and  had  formed  decided 
opinions.  When  he  came  to  a  conclusion  he 
cared  not  what  any  other  man  thought. 

It  has  been  a  disputed  matter  whether  the 
General  Government  actually  prevailed  in  its 
controversy  with  South  Carolina.  Though  the 
State  prepared  munitions  of  war,  increased  its 
militia,  parsed  laws  to  punish  persons  executing 
those  of  the  United  States,  and  declared  its 
secession  from  the  Union  if  the  United  States 
laws  were  attempted  to  be  enforced,  neither 
the  State  nor  its  citizens  did  actually  commit 
any  overt  act  of  resistance.  They  claimed, 
however,  that  Clay's  compromise  bill,  gradually 
reducing  duties,  which  became  law  March  2d, 
was  a  surrender  to  them. 

On  the  other  hand  it  is  asserted  that  the  bill 
was  not  at  all  what  South  Carolina  had  de- 
manded. It  is  undisputed  that  the  United 
States  Government  passed  a  force  bill  based  on 
the  ground  that  it  could  compel  the  exercise  of 
its  authority  over  the  citizens  of  a  State  disput- 
ing it,  and  that  no  resistance  was  made  to  the 
collection  of  the  import  duties  after  February 


146  NULLIFICATION,    SECESSION. 

ist,when  the  State  declared  its  ordinance  should 
be  enforced,  the  reduction  of  the  tariff  being 
subsequently  passed.1 

It  was  in  South  Carolina  alone  that  the  right 
of  nullification  was  sanctioned  by  a  majority  of 
its  citizens.  There  were  in  the  debates  in  Con- 
gress on  that  matter  members  from  other  States 
who  maintained  that  doctrine,  but  Southern 
writers  have  apparently  purposely  omitted, 
and  Von  Hoist,  Greeley,  and  Benton,  historians 
of  that  time,  have  overlooked  the  resolutions 
of  the  other  Southern  States  condemning  the 
doctrines  of  South  Carolina,  which  are  the 
more  significant  as  those  States  agreed  with 
her  in  opposing  and  denouncing  the  tariff. 

Virginia's  position,  though  less  decided  than 
that  of  the  other  States,  did  not  please  Calhoun  ; 
in  reply  to  her  Senator,  Mr.  Rives,  who  had 
opposed  the  South  Carolinian  doctrine,  he 
spoke  of  her  as  "  a  once  "  patriotic  State.  Vir- 
ginia's resolutions  were,  that  the  doctrines  of 
State  sovereignty  and  State  rights  as  set  forth 
in  her  resolutions  of  1798,  and  sustained  by  the 
report  thereon  of  1799,  were  a  true  interpreta- 
tion of  the  Constitution,  but  she  did  not  consider 
them  as  sanctioning  the  proceedings  of  South 
Carolina  in  her  said  ordinances,  nor  as  counte- 

1  Alex.  Johnston,  in  Winsor's  History  of  America,  vol.vii., 
p.  286,  says  that  Jackson  collected  the  duties  at  Charleston  by 
naval  and  military  force,  and  that  the  day  before  February  1st 
a  meeting  of  "  leading  nullifiers  "  agreed  to  avoid  all  collision 
with  the  Federal  Government. 


NATIONAL   GOVERNMENT.  147 

nancingall  the  principles  assumed  by  the  Presi- 
dent in  his  proclamation.  Virginia  sent  Mr. 
Leigh  as  a  commissioner  to  South  Carolina,  but 
without  result. 

Mississippi,  Jefferson  Davis'  State,  declared 
"that,  in  the  language  of  the  father  of  his 
country,  we  will  indignantly  frown  upon  the 
first  dawning  of  every  attempt  to  alienate 
any  portion  of  our  country  from  the  rest, 
or  to  enfeeble  the  ties  which  link  together  its 
various  parts."  Nullification  was  condemned 
in  the  strongest  terms,  and  it  was  declared 
they  would  support  the  President  in  main- 
taining the  Union. 

In  the  next  year,  Robert  J.  Walker  canvassed 
the  State  for  a  seat  in  the  Senate  with  Poindex- 
ter,  his  opponent ;  the  issue  was  a  question  of 
nullification,  and  Walker,  after  a  contest  of 
three  years,  prevailed  and  became  Senator  at 
the  election,  January  8,  1836.  General  Jackson 
wrote  a  letter  in  his  favor.1 

Alabama  declared  nullification  "  is  unsound 
in  theory  and  dangerous  in  practice  "  ;  North 
Carolina,  that  it  "  is  revolutionary  in  its  char- 
acter, and  subversive  of  the  Constitution,  and 
leads  to  disunion  "  ;  Georgia,  "  that  we  abhor  the 
doctrine  of  nullification  as  neither  a  peaceful 
nor  a  constitutional  remedy,"  and  further  de- 
clare, while  they  deplore  the  rash  and  revolu- 
tionary measures  of  South  Carolina,  they  warn 

1  Article  by  R.  J.  Walker  on  "  Nullification  and  Secession," 
February,  1863,  p.  179,  Continental  Monthly  Magazine. 


148  NULLIFICATION,    SECESSION. 

their  citizens  against  adopting  her  mischievous 
policy.1 

These  were  the  opinions  of  the  Southern 
States  in  1833.  So  that  at  that  time,  as  a  mat- 
ter of  history,  South  Carolina  alone  claimed 
the  right  of  nullification  and  secession. 

We  have  before  said  it  has  been  customary 
for  the  Legislatures  of  States  to  pass  resolutions 
declaring  acts  and  laws  of  the  United  States — 
that  they  are  opposed  to — unconstitutional,  and 
therefore  null  and  void ;  but  that  these  State 
resolutions  do  not  make  them  so  ;  that  they 
are  merely  the  opinions  of  the  Legislatures 
that  pass  them  ;  that  the  decision,  whether  laws 
of  the  United  States  or  acts  of  its  government 
are  null  and  void,  rests  solely  with  the  judiciary 
of  the  United  States. 

On  examination  we  find,  from  the  inception 
of  Washington's  administration  until  the  inau- 
guration of  Lincoln,  that,  without  exception, 
the  authority  and  supremacy  of  the  laws  and 
government  of  the  United  States  have  been 
maintained  and  enforced  by  its  courts  over 
every  State,  and  every  State  government  and 
judiciary,  and  every  individual  therein: — Over 
Pennsylvania,  as  we  have  before  set  forth  in  the 

1  State  papers  on  nullification,  collected  and  published  in 
1834  by  order  of  the  General  Court  of  Massachusetts.  The 
volume  contains  the  remonstrances  of  many  State  Legislatures 
besides  those  quoted.  It  has  also  the  ordinance  of  the  South 
Carolina  convention  at  the  adjournment,  held  March  19,  1833, 
in  which  the  convention  declared  the  State's  nullification  of 
the  force  bill  of  Congress  of  March  2d  then  enforced  :  this 
declaration  was  mere  brutum  fulmen. 


NATIONAL  GOVERNMENT.  149 

Gideon  Olmstead  case,  when  the  representatives 
of  the  State  officer  who  had  disbursed  prize 
money  under  the  decision  of  the  State  Court 
were  compelled  to  repay  it  to  the  United  States.1 
Over  Kentucky  itself,  in  1812,  when  the  court 
maintained  that  a  Kentucky  State  court  had  no 
jurisdiction  to  enjoin  a  judgment  of  a  court  of 
the  United  States."  Over  Kentucky  and  Vir- 
ginia, in  a  serious  controversy  about  the  validity 
of  the  grants  of  those  States."  Over  Maryland, 
when  the  State  undertook  to  tax  the  branch  of 
the  United  States  Bank  established  in  her  ter- 
ritory, on  the  ground  that  no  State  could  tax 
the  instrument  employed  by  the  government  in 
the  exercise  of  its  powers.4  In  this  case  Chief- 
Justice  Marshall  declared  :  "  If  any  one  propo- 
sition would  command  the  universal  assent  of 
mankind,  we  might  expect  it  to  be  this,  that 
the  government  of  the  Union,  though  limited 
in  its  powers,  is  supreme  within  its  sphere." 
Even  further,  the  United  States  Court  inter- 
fered and  took  from  the  State  court  of  Virginia 
jurisdiction  of  the  prosecution  by  that  great 
State  of  one  of  its  own  citizens  for  illegally  sell- 
ing tickets  in  a  lottery,  because  the  lottery  had 
been  authorized  in  the  District  of  Columbia 
and  brought  in  question  the  validity  of  a  United 
States  law/  Over  Massachusetts,  in  declaring 

1  United  States  vs.  Peters,  5  Cranch,  115. 
9  McKim  -vs.  Voorhies,  7  Cranch,  279. 
8  Green  vs.  Biddle,  8  Wheaton,  I. 
4  McCulloch  -vs.  Maryland,  4  Wheaton,  316. 
6  Cohens  vs.  Virginia,  6  Wheaton,  264. 


150  NULLIFICATION,    SECESSION. 

the  embargo  legal.  Over  New  York,  when  it 
declared  illegal  the  State's  grants  to  Fulton, 
the  inventor  of  the  steamboat,  of  the  exclusive 
right  of  navigation  of  the  Hudson.  Over  Ohio, 
when  the  State  insisted  on  taxing  the  branch 
of  the  Bank  of  the  United  States,  the  court 
issuing  its  mandamus  and  compelling  the  State's 
Treasurer  to  obey  its  decree.1  Over  South 
Carolina,  in  1829,  not  long  before  her  threat- 
ened nullification,  when  the  court  annulled  the 
taxation  by  the  city  of  Charleston  of  the  bonds 
of  the  United  States,  because  it  was  an  inter- 
ference with  the  power  of  the  General  Govern- 
ment to  borrow  money.2  The  disputes  of  States 
about  their  boundaries  often  came  before  the 
Supreme  Court  and  were  settled,  the  States 
appearing  as  parties.  Indeed,  such  interference 
and  control  were  so  frequent  and  so  implicitly 
submitted  to  that  Chief-Justice  Marshall  said  : 
"  Though  it  had  been  the  unpleasant  duty  of 
the  United  States  courts  to  reverse  the  judg- 
ments of  many  State  courts  in  cases  in  which 
the  strongest  State  feelings  were  engaged,  the 
State  judges  have  yielded  without  hesitation  to 
their  authority,  while  perhaps  disapproving  the 
judgment  of  reversal."  : 

These  decisions  of  the  United  States  Supreme 
Court  were  made  by  judges  appointed  by  all 
the  political  parties  that  had  been  in  power,  by 

1  Bank  of  U.  S.  vs.  Osborn,  9  Wheaton,  738. 
5  Weston  vs.  Charleston,  2  Peters,  449. 
8  Cohens  vs.  Virginia. 


NATIONAL   GOVERNMENT.  15 1 

those  in  favor  of  a  strict  as  well  as  a  liberal 
construction  of  the  Constitution.  Taney,  a 
very  eminent  jurist,  and  his  associates,  judges 
appointed  by  the  political  party  predominant 
in  the  States  that  attempted  to  disrupt  the 
Union,  held  that  the  Constitution  and  the  laws 
of  the  government  were  paramount,  and  an- 
nounced and  maintained  their  supremacy  to 
the  beginning  of  the  rebellion  over  every  State 
court  and  State  law  and  constitution.1 

The  action  of  the  State  of  Georgia  in  1832, 
in  a  controversy  between  that  State  and  the 
United  States  Supreme  Court,  has  been  cited 
in  support  of  the  theory  that  Georgia  main- 
tained the  doctrine  of  State  supremacy.  In 
that  case  the  matter  never  came  to  an  actual 
conflict.  Why  the  United  States  decision  was 
not  promptly  enforced  is  a  matter  that  it  is  not 
here  worth  while  to  enter  into."  It  is  sufficient 
to  quote  the  resolutions  of  the  Legislature  of  the 
State  in  1833,  that  she  abhorred  the  doctrine 
of  nullification  and  deplored  the  revolutionary 

1  See  22  Howard,  227,  Sinnott  vs.  Davenport,  21  Howard. 
506  ;  Ableman  vs.  Booth,  5  Howard,  134  ;  Rowan  vs.  Run- 
nells.  In  these  two  last  cases  Taney  and  the  Court  put  aside 
the  decrees  of  the  Supreme  Courts,  of  Wisconsin  and  Missis- 
sippi, because  they  were  in  conflict  with  the  powers  given  to 
the  United  States  ;  in  the  latter  case,  overruling  and  even 
reversing  the  decision  of  the  Supreme  Court  of  Mississipi  as  to 
when  its  constitution  took  effect. 

9  General  Jackson's  sympathy  was  with  Georgia  in  this  mat- 
ter, and  he  is  reported  as  saying  :  "John  Marshall  has  made 
the  decision,  now  let  him  execute  it."  The  missionary  that 
Georgia  had  imprisoned  was,  however,  released  by  the  State. 


152  NULLIFICATION,    SECESSION. 

measures  of  South  Carolina  and  warned  her 
citizens  against  adopting  that  mischievous  pol- 
icy, to  show  that  the  State,  in  her  opposition  to 
the  christianizing  of  Cherokee  Indians,  did  not 
question  the  supremacy  of  the  United  States 
Government. 

It  is  often  asserted  by  historical  writers  that  the 
Supreme  Court  of  the  United  States,  under  the 
guidance  of  Marshall,  has  built  up,  magnified, 
and  extended  the  powers  of  the  government. 
Undoubtedly  the  court  has  great  power  in  de- 
ciding whether  the  laws  of  a  State  or  the  acts 
of  a  State  officer  are  illegal,  when  the  question 
is  whether  they  infringe  on  the  rights  of  the 
general  government  ;  it,  however,  cannot  make 
laws  and  acts  extending  the  national  powers. 
Its  authority  is,  for  the  most  part,  that  of  re- 
straint over  the  acts  of  the  executive  and 
United  State  officers,  and  of  annulling,  as  it 
often  has,  the  laws  of  Congress  adjudged  to  be 
beyond  its  powers.  It  is  Congress  that  made 
the  Alien  and  Sedition  laws,  United  States 
banks,  tariffs  and  embargoes  ;  it  was  the  Pres- 
ident and  Congress  who  freed  the  negroes. 
Even  in  the  war  of  secession,  the  judiciary 
declared  the  President's  disregard  of  the  habeas 
corpus  in  Milligan's  case  illegal.1 

The  idea  which  has  found  favor  that  Judge 
Story  yielded  his  early  convictions  as  to  the 
nationality  of  the  government  to  the  influence 
of  Marshall,  is  founded  on  the  erroneous  theory 

1  Ex parte  Milligan,  4,  Wallace,  2. 


NATIONAL  GOVERNMENT.  153 

that  the  doctrine  of  the  Kentucky  resolutions 
were,  after  their  promulgation,  held  and  be- 
lieved in  by  Story  and  the  republicans.  Any- 
one who  was  personally  acquainted  with  Story, 
or  was  taught  by  him  in  the  law  school  at  Cam- 
bridge, or  heard  the  opinions  of  the  eminent 
counsel  who  tried  cases  before  him,  knows 
that  no  judge  of  a  more  uncompromising 
confidence  in  his  own  conclusions  and  decisions 
ever  sat  on  the  bench.  The  great  fault  of  this 
most  learned  of  our  judges  was  the  quickness 
of  his  apprehension  and  of  his  arriving  at  a 
conclusion  in  the  beginning  of  a  case  he  was 
hearing,  and  the  tenacity  with  which  he  held 
and  enforced  it,  sometimes  even  to  the  det- 
riment of  justice  itself.  Story,  though  gen- 
erally agreeing  Math  the  Chief  Justice,  at 
times  gave  dissenting  opinions  on  constitu- 
tional questions. 

The  government,  from  the  time  of  South 
Carolina's  earlier  nullification  ordinances  to 
that  of  the  civil  war,  excepting  for  very  short 
periods,  was  in  the  hands  of  the  South.  Under^ 
it,  and  in  the  interest  of  the  slave  States,  Polk 
made  war  with  Mexico,  an  act  of  Congress 
declaring  that  it  existed.  Texas  with  its  im- 
mense territory  of  over  two  hundred  thousand 
square  miles  was  annexed  in  Tyler's  adminis- 
tration, Calhoun  becoming  Secretary  of  State 
for  that  purpose.  Laws  interfering  with  the 
constitutional  rights  of  Northern  citizens  of  the 
black  and  mixed  race,  and  for  the  protection  of 


154  NULLIFICATION,   SECESSION. 

slavery,  were  passed  and  enforced  by  the  South- 
ern States. 

There  can  be  no  doubt  that  the  belief  had 
been  growing  in  those  States,  that  they  would 
be  better  off  out  of  the  Union  than  in  it.  The 
opposition  to  slavery  was  increasing  at  the 
North ;  no  works  were  so  widely  read  there  as 
those  setting  forth  its  iniquities.  The  South, 
then,  as  in  the  time  of  the  making  of  the  Con- 
stitution, was  an  agricultural  country,  depend- 
ing for  its  prosperity  on  a  cheap,  forced  labor, 
and  the  exportation  of  its  cotton  and  other 
products.  It  was  strong  in  men,  and  no  longer 
required  the  protection  of  the  Eastern  States, 
as  in  the  days  of  the  National  Convention.  In 
1854,  by  the  laws  enacted  by  Congress,  the 
whole  territory  of  the  United  States  was  thrown 
open  to  the  introduction  of  slavery,  giving  to  the 
Southern  States  the  right  to  carry  into  it  their 
"  peculiar  property,"  and  taking  away  their 
great  grievance.  Then  also  came  the  decision 
of  the  United  States  Supreme  Court  in  the 
Dred  Scott  case,  that  all  laws  excluding  slavery 
from  the  territories  were  unconstitutional,  and 
asserting  that  the  inhabitants  of  those  terri- 
tories could  not  interfere  with  that  right.  The 
only  matter  the  South  could  complain  of  was 
the  hostility  of  the  Northern  States  to  slavery, 
and  that  some  of  them  would  not  comply  with 
the  laws  for  the  rendition  of  their  slaves,  and 
had  passed  State  laws  and  committed  acts  in- 
terfering with  their  legal  and  constitutional 


NATIONAL  GOVERNMENT.  155 

right  of  seizing  them  on  Northern  territory. 
There  was  no  pretence  that  there  was  any 
tyrannical  usurpation  of  undelegated  authority 
by  the  United  States,  such  as  the  Virginia 
resolutions  referred  to.  Prof.  Bazil  L.  Gilder- 
sleeve,  a  confederate  soldier,  in  the  Atlantic 
Monthly  Magazine,  says  in  a  paper  called  "  The 
Creed  of  the  old  South,"  that  the  cause  of  seces- 
sion was,  that  "  the  extreme  Southern  States 
considered  their  rights  menaced  by  the  issue  of 
the  presidential  election." ' 

Upon  the  choice  of  Lincoln,  and  while 
Buchanan  was  President,  preparations  were 
made  by  the  South  for  a  disruption  of  the 
Union.  Reuben  Davis,  a  distinguished  law- 
yer and  a  member  of  Congress  from  Missis- 
sippi, in  his  autobiography,  informs  us  that  he 
spent  much  time  with  Floyd,  the  Secretary  of 
War,  who  had  been  for  twelve  months  send- 
ing arms  to  Southern  arsenals  and  had  put  the 
forts  in  condition  to  be  captured.  He  esti- 
mated that  one  half  of  the  munitions  of  war 
was  in  the  South.*  South  Carolina  again  took 
the  initiative  and  seceded  on  the  ground  that 
as  a  sovereign  State  she  had  the  right  to  with- 
draw from  the  compact  she  had  entered  into ; 
and  for  the  second  time  in  our  history  did  a 
State,  and  the  same  State,  assert  its  sovereign 
right  against  the  supreme  authority  of  the 
United  States.  The  other  plantation  States 

1  Atlantic  Monthly,  January,  1892. 
*  Reuben  Davis'  Recollections,  p.  395. 


156  NULLIFICATION,    SECESSION. 

quickly  followed  South  Carolina;  generally 
there  was  no  elaborate  statement  by  them  of 
their  grievances,  nor  did  they  explain  why  the 
doctrines  they  abhorred  less  than  thirty  years 
before,  they  now  asserted  and  so  courageously 
fought  for.  Virginia  joined  the  Southern  Con- 
federacy without  passing  any  formal  act  of 
secession.  Her  convention,  called  for  the  pur- 
pose of  considering  the  matter,  voted  not  to 
secede.  In  an  address  delivered  in  October,  1 887, 
at  Richmond,  on  the  dedication  of  a  statue  to 
Lee,  the  orator,  a  descendant  of  the  great  Chief- 
Justice  Marshall,  undertakes  to  explain  and 
defend  Virginia's  course  in  joining  the  South. 
He  does  not  claim  the  right  of  secession  and 
apparently  agrees  with  Lee,  and  puts  in  italics 
what  Lee  wrote  on  the  23d  of  January,  1861, 
that  "  Secession  is  nothing  but  revolution."  He 
states  also  that  secession  was- unjustifiable,  be- 
cause the  opponents  of  Lincoln  had  the  ma- 
jority in  the  National  House  of  Representatives 
and  Senate  ;  but  that  the  method  of  Lincoln 
of  composing  the  troubles  of  the  country 
brought  Virginia  into  the  contest.  Follow- 
ing, as  Southern  writers  and  speakers  do,  the 
extravagant  denunciations  of  Calhoun,  he  says : 
"  Instead  of  maintaining  the  honor,  the  integ- 
rity of  our  National  Union,  it  destroyed  that 
Union  in  all  but  a  territorial  sense,  as  effect- 
ually as  secession,  by  substituting  conquered 
provinces  for  free  States,  and  repeating  in 


NATIONAL  GOVERNMENT.  I  57 

America  the  shameful  history  of  Russia  and 
Poland."  As  our  Poland  when  he  spoke  had 
an  executive  of  its  own  choice  and  a  majority 
of  the  House  of  Representatives,  it  was  its 
own  fault,  if  its  inhabitants  were  in  that  abject 
condition.  Is  it  not  absurd  to  talk  in  this  way, 
when  no  secessionist  has  been  hung  for  treason, 
and  a  silver  crown  a  short  time  since,  at  a  pub- 
lic meeting,  was  prepared  by  some  admirer  for 
the  dethroned  autocrat  of  our  Poland  ?  At  any 
rate  we  have  no  sedition  law  now,  and  freedom 
of  speech  against  the  government  passes  with- 
out comment.  An  unsuccessful  revolution  is 
rebellion,  generally  punished  in  other  countries 
by  death.  It  has  not  been  so  in  our  Russia. 
Jefferson  Davis  was  indicted  for  treason  ;  his 
trial  never  took  place,  as  President  Johnson  is- 
sued a  general  amnesty  proclamation. 

Undoubtedly  the  confidence  of  the  South  in 
its  assumed  superiority  in  courage  and  fighting 
qualities  had  great  influence  in  inducing  its 
attempted  secession.  Jefferson  Davis  in  his 
history  gives  instances  of  advantages  gained 
at  the  outset  by  the  Southern  soldiers  through 
their  skill  in  the  use  of  firearms.  He  did  not 
tell  us,  and  it  seems  to  have  escaped  notice 
generally,  that  the  Southern  States  had  also 
the  great  benefit  of  the  military  academies 
they  had  established,  which  furnished  at  once 
trained  officers  for  their  troops.  Their  re- 
nowned general,  Stonewall  Jackson,  was  a 


158  NULLIFICATION,   SECESSION. 

professor  in  that  of  Virginia,  and  went  from 
the  academy  to  the  Confederate  army. ' 

The  seceding  States  in  forming  their  new 
compact,  in  article  after  article  followed  the 
Constitution  they  rejected,  prefacing  it  with 
the  declaration,  "  We,  the  people  of  the 
Confederate  States,  each  State  acting  in  its 
sovereign  and  independent  character,  in  order 
to  form  a  more  permanent  Federal  Govern- 
ment," instead  of  "We,  the  people  of  the 
United  States,  in  order  to  form  a  more  perfect 
Union,  for  ourselves  and  our  posterity."  They 
took  particular  care,  however,  by  their  new 
"  Compact,"  to  provide  for  the  perpetuity  of 
slavery  in  their  Confederacy, — and,  looking  to 
conquests,  in  any  new  territory  that  might  be 
acquired. 

Instead  of  slavery  being  perpetuated,  the 
whole  system  was  annihilated  under  and 
within  the  Constitution.  The  amendment 
abolishing  it  forever  was  passed  in  the  manner 
required  in  the  Constitution  by  all  the  States 
that  had  refused  an  obedience  to  the  United 
States  laws.  No  longer  is  the  declaration  of 

1  See  article  by  John  S.  Wise  in  the  Century  Magazine, 
Jan.,  1890.  The  Virginia  Military  Academy  was  established 
by  the  State  in  1839.  Col.  Smith,  a  graduate  of  West  Point, 
was  at  the  head.  It  was  continued  during  the  civil  war 
under  the  charge  of  disabled  officers.  In  1860  a  professor  in 
this  school  informed  the  writer  that  there  were  similar  acad- 
emies in  all  the  Southern  States.  Apparently  they  have  been 
discontinued  in  most  of  them,  South  Carolina,  however,  yet 
maintaining  hers. 


NATIONAL  GOVERNMENT,  159 

independence  that  all  men  are  born  free  and 
equal,  in  the  language  of  Calhoun,  "  a  glitter- 
ing generality." 

The  seceding  States  were  not  without  their 
internal  trouble,  and  the  authority  of  the  Con- 
federate Government  was  questioned  by 
Georgia. 

We  all  know  how  patiently  and  assiduously 
Lincoln  tried  to  keep  the  Southern  States  in 
the  Union  and  how  ineffectually  ;  and  when  he 
found  that  his  effort  was  of  no  avail,  with  how 
firm  a  hand  he  wielded  the  powers  of  the 
Executive.  In  Merriam's  case,  he  maintained 
his  suspension  of  the  habeas  corpus,  although 
Chief-Justice  Taney  held  it  was  illegal.  His 
decreeing  freedom  to  the  slaves  of  those  in 
rebellion,  as  a  war  measure,  was  an  act  of 
imperial  power  seldom  surpassed.  Our  whole 
history,  as  well  as  the  epoch  of  the  civil  war, 
has  proved  how  unfounded  was  Hamilton's 
fear  that  the  government  was  not  strong 
enough. 

How  wonderfully  well  the  founders  of  our 
Constitution  did  their  work,  is  shown  by  the 
fact  that  so  few  amendments  have  been 
made,  while  the  constitutions  of  the  different 
States  have  been  changed  again  and  again. 
The  ten  articles  declaring  certain  rights  to 
be  in  the  people  were  adopted  in  1791,  then 
in  1798  the  article  taking  away  from  the  United 
States  the  jurisdiction  of  suits  of  individuals 
against  a  State  ;  afterwards  in  1 804  two  articles 


l6o  NULLIFICATION,    SECESSION. 

changing  the  manner  of  electing  the  President 
and  Vice-President.  The  theory  of  the  founders 
of  the  Constitution,  that  it  would  be  best  to 
leave  to  men  of  prominence  as  electors  to  con- 
fer and  choose  those  most  fit  for  President  and 
Vice-President,  has  failed.  The  electors  chosen 
by  the  people  are  pledged  to  vote  for  candi- 
dates nominated  at  party  conventions.  After 
these  few  amendments,  none  were  passed  until 
those  as  to  slavery,  following  the  civil  war. 

A  strict  construction  of  the  powers  granted 
by  the  Constitution  is  a  "  State's  rights  "  that 
those  who  believe  in  the  supremacy  of  the 
National  Union  can  well  favor.  It  is  beyond 
human  wisdom  to  enact  laws  of  which  there 
can  be  no  question ;  the  decisions  of  the 
Supreme  Court  show  how  hard  it  is  to  make  a 
law  whose  constitutionality  is  not  disputed. 
Government  would  have  been  impossible,  if 
the  power  had  been  in  each  State  to  decide  for 
itself  as  to  the  validity  of  every  law  passed  and 
every  act  of  the  General  Government,  and  to 
secede  at  its  will  whenever  it  chose.  Yet  this 
is  the  government  that  the  South  claimed  our 
forefathers  established. 

In  forming  the  Confederacy  of  the  Revolu- 
tion, it  was  declared  in  its  articles  that  it  was 
indissoluble ;  the  same  declaration  is  in  the 
Constitution  when  the  States  "  formed  a  more 
perfect  Union  "  than  that  of  the  Confederacy 
"  for  ourselves  and  our  posterity,"  and  were 
merged  into  one  Nation.  This  Constitution 


NATIONAL  GOVERNMENT.  l6l 

and  the  laws  of  the  United  States  are  declared 
there,  "  as  the  supreme  law  of  the  land  ;  and 
the  judges  in  every  State  shall  be  bound  there- 
by, anything  in  the  Constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding." 
Supreme  over  what,  if  not  over  the  States  that 
should  adopt  it  ?  Historically  that  supremacy 
has  been  maintained  and  enforced  by  the 
United  States  Courts  and  Executive  and 
Legislature. 

In  resisting  the  supremacy  of  this  Constitu- 
tion no  State,  dismembered  Virginia  perhaps 
excepted,  has  suffered  more  than  South  Caro- 
lina. It  is  truly  pathetic  in  passing  through 
the  streets  of  Charleston,  the  home  of  the 
great  planters  and  politicians  that  shaped  the 
destinies  of  the  State,  to  hear  the  names  of 
the  foreign  bankers  and  merchants  that  have 
taken  the  place  and  the  homes  of  the  old 
leaders  or  who  have  built  more  pretentious 
abodes,  to  see  the  buildings  with  walls  cracked 
and  fissured  by  the  earthquake  mended  by 
contributions  cheerfully  given  by  Northern 
friends,  to  read  the  newspapers  lamenting 
the  loss  of  their  trade  to  Savannah  and  calling 
on  the  United  States  for  larger  appropriations 
to  deepen  the  channels  of  their  harbor.  Then 
to  look  upon  their  statues  of  those  distinguished 
at  different  periods  :  the  mutilated  one  of  the 
great  Earl  of  Chatham,  the  friend  of  American 
freedom  in  Colony  times  ;  those  of  the  heroes 
of  the  Revolution  and  the  war  of  1812  ;  and  in 


1 62  NULLIFICATION,    SECESSION. 

the  square  opposite  the  barracks  of  her  Military 
Academy,  the  great  glittering  bronze  of  Cal- 
houn,1  who  brought  so  much  misery  to  them 
all.  But  as  we  go  Westward,  where  the  sandy 
soil  of  the  plains  yields  to  the  clay  of  the  foot- 
hills, and  find  the  streams  turning  the  wheels 
of  the  factory,  and  hear  the  whirl  of  the  spindle 
tended  by  white  operatives,  and  see  the  plough, 
generally  followed  by  a  white  man,  turning 
over  the  soil  amidst  the  stumps  of  trees  in 
fields  newly  reclaimed  ;  and  come  at  last  to 
Spartanburg  and  read  the  inscription  there 
on  the  monument  recently  raised  to  those 
who  fell  at  Cowpens,  by  the  old  thirteen 
States  and  Tennessee,  bringing  to  memory 
the  days  of  Greene  and  Morgan,  we  cannot 
but  believe  instead  of  four  and  forty  sover- 
eign States,  we  shall,  in  Webster's  words, 
have  for  all  time,  "  one  Nation,  one  Union, 
one  Destiny." 

1  This  was  written  four  years  ago  :  Charleston  now  shows 
few  signs  of  the  earthquake,  and  Calhoun's  statue  has  mellowed 
into  a  pleasing  bronze  color. 


INDEX. 


Adams,  Charles  Francis,  Minister  to  England,  3 

Adams,  Henry,  opinion  concerning  Virginia's  estimation  of 
validity  of  United  States  laws,  100  ;  controverted,  113-115 

Adams,  John,  influence  of  Alien  and  Sedition  laws  on  re- 
election, 112 

Alien  and  Sedition  laws  of  1798,  88  ;  Jefferson's  opposition 
to,  88  ;  influence  in  defeating  federal  party,  112 

Amendments  to  Constitution,  how  made,  40 ;  first  ten  arti- 
cles, 78,  79 

B 

British  opinion  of  right  of  secession,  213 
Bryce,  James,  on  right  of  Southern  States,  3  ;  theory  of  his 
book,  3,  note 


Calhoun,  John  C.,  United  States  a  confederacy,  not  a  nation, 
24  ;  his  youthful  prominence  in  Congress,  34  ;  his  early 
opinions  of  the  Constitution,  134,  135  ;  change  of  opinion, 
J37i  138  ;  personal  appearance,  138,  139  ;  his  reasoning  on 
right  of  nullification,  140  ;  his  argument  considered,  140, 
141 

Chase,  Salmon  P.,  decision  on  secession,  34,  35 

Clay,  Henry,  tariff  compromise,  23 

Clinton,  George,  his  opinion  as  stated  by  Mr.  Lodge,  5  ;  his 
written  declaration  that  the  United  States  Government  is 
perpetual,  77,  78 

163 


164  INDEX. 

Compact,  may  be  for  national,  indissoluble  government,  28, 
29  ;  a  voluntary  union  of  independent  nations  must  be  by 
compact,  28  ;  Southern  views  of,  30 

Confederacy  of  the  Southern  States,  constitution  and  com- 
pact as  to  slavery,  158 

Confederacy  of  the  United  States,  its  failure,  31,  32  ;  depen- 
dent upon  the  States,  48 

Constitution  of  United  States,  adoption  by  Continental  Con- 
gress, States,  and  people,  32  ;  perpetuity  declared  in  pre- 
amble, 33,  34  ;  supremacy,  35,  36,  49 ;  oath  of  every 
State  officer  and  judge  to  support,  36  ;  supremacy  in  all 
sovereign  powers,  37,  38  ;  prohibitions  to  States,  38,  39, 
47  ;  power  to  coerce  States  in  articles  punishing  treason, 
41,  42,  43  ;  can  take  all  powers  from  States  by  amend- 
ments, 45,  46  ;  made  States  suable,  44  ;  powers  given  by 
Constitution  to  States,  46  ;  naturalization,  47  ;  takes  from 
States  powers  of  resistance,  47,  48  ;  its  excellence  proved 
by  few  amendments,  159,  160  ;  its  adoption  opposed  on 
account  of  its  nationality  and  of  excessive  powers  given, 
69-73  ;  no  claim  of  right  of  secession  or  nullification  sug- 
gested in  the  conventions  adopting  the  Constitution,  73 

Convention  that  made  the  Constitution,  its  members  and 
mode  of  voting,  51-53  ;  proposition  of  the  delegation  of 
Virginia  for  a  National  Government  debated  and  passed, 
51-53  ;  New  Jersey  plan  amending  confederacy,  54,  56  ; 
resolves  for  a  National  Government  again  taken  up  and 
passed,  56-62  ;  representation  in  Senate,  58-60  ;  a  com- 
promise of  representation  not  a  compromise  of  powers 
granted,  60,  61  ;  resolutions  calling  the  proposed  govern- 
ment national  referred  to  Committee  to  Report  a  Constitu- 
tion, 61,  62  ;  report  of  committee  and  articles  again 
considered  separately,  62-64  ',  change  in  preamble  by 
Committee  of  Style  and  Arrangement,  64  ;  opinions  of 
members,  65,  66  ;  its  nationality  and  great  powers,  70-72 

Cooper,  Thomas,  pronounced  in  1833,  in  South  Carolina, 
author  of  nullification,  141,  142 

D 

Davis,  Jefferson,  indicted  for  treason  and  not  tried,  157 ; 
asserted  advantage  of  Southern  soldiers,  157 


INDEX.  165 


Embargo,  129,  130 


Federal,  the  party,  meaning  of  the  term,  37 

Franklin,  Benjamin,  services  as  member  of  the  convention,  68 


Georgia,  suit  of  Chisholm  against,  82-84 ;  claim  of  sover- 
eignty, 83  ;  decision  of  Supreme  Court,  83,  84  ;  contro- 
versy as  to  Cherokee  Indians,  151  ;  vigorous  resolutions 
in  1833  against  South  Carolina's  nullification  doctrines,  147 

Gerry,  Elbridge,  objection  to  conferring  power  of  amending 
Constitution  as  fatal  to  the  States,  45,  46  ;  refused  to  sign 
the  Constitution,  68 

H 

Hamilton,  Alexander,  proposed  plan  for  a  strong  government 
not  favored  in  the  convention,  54,  55  ;  his  speech  as  to 
democracy,  55;  promised  support  of  Constitution,  68; 
correspondence  with  Madison,  72  ;  successful  support  of 
the  adoption  of  the  Constitution  by  New  York,  72  ;  states 
in  the  Federalist  the  supremacy  of  the  judicial  power  of 
the  United  States,  129 

Hartford  convention,  called  by  Massachusetts,  discontent  of 
the  State,  131  ;  resolutions  passed  did  not  assert  State 
sovereignty,  but  proposed  amendments  to  Constitution, 
131,  132 

Hayne,  Robert  Y.,  denunciation  of  the  Eastern  States,  8  ;  his 
doctrine,  9;  approval  of,  by  citizens  of  Charleston,  138 

Henry,  Patrick,  Lodge's  assertion  as  to  his  opinion,  5  ;  strenu- 
ous objection  to  adoption  of  the  Constitution  as  national, 
70,  71  ;  opposition  to  the  Virginia  resolutions,  113;  his 
declaration  that  Virginia  was  to  the  United  States  as  a 
county  to  Virginia,  113,  114 


Iredell,  James,  dissenting  opinion  in  Chisholm  against  Georgia 

was  not  by  reason  of  sovereignty  of  Georgia,  83 
Ireland,  bill  of  1886  for  home  rule,  40 


1 66  INDEX. 


Jackson,  Andrew,  his  proclamation  against  nullification,  21, 
22  ;  his  popularity  and  arbitrary  exercise  of  power,  23 ; 
his  character  and  early  life,  143  ;  experience  in  politics 
and  law,  144  ;  proclamation  his  own  work,  142,  143,  145  ; 
threat  to  hang  Calhoun,  22  ;  collected  duties  after  South 
Carolina  declared  they  should  not  be  levied,  145,  note,  146 

Jay,  John,  wrote,  "the  convention  and  people  agreed  a 
National  Government  was  necessary,"  71,  72  ;  his  opinion 
in  Chisholm  vs.  Georgia  as  to  sovereignty  of  United 
States,  80,  8 1 

Jefferson,  Thomas,  reputed  author  of  Kentucky  resolutions, 
88  ;  approval  of  coercing  States,  93  ;  became  president 
immediately  after  passage  of  Kentucky  resolutions,  116; 
his  inaugural  address  national,  116-118;  approved  of 
bills  in  favor  of  a  national  road,  118  ;  approval  of  the  use 
of  the  army  and  navy  against  Pennsylvania  in  the  Gideon 
Olmstead  case,  118-121  ;  approval  of  annexation  of  Lou- 
isiana, 123  ;  opinion  as  to  nullification  and  secession,  125  ; 
opposition  to  Alien  and  Sedition  laws,  126,  127  ;  national 
views,  the  embargo,  129,  130 ;  prescribed  Federalist  as 
text-book  in  University  of  Virginia,  128,  129 

Judiciary  of  the  United  States,  made  supreme  by  the  Consti- 
tution, 37  ;  power  to  decide  on  laws  of  Congress,  49,  50 ; 
supremacy  of  the  Government  uniformly  sustained  by  it, 
148-151 

K 

Kentucky  resolutions,  90  ;  not  much  noticed  as  coming  from 
a  new  State,  89  ;  merely  the  opinion  of  the  legislature 
that  passed  them,  89  ;  their  doctrine  considered,  90-93  ; 
they  deny  that  the  United  States  Government  could  pun- 
ish any  crime  except  when  the  power  is  specifically 
given,  93,  94  ;  they  protest  against  laws  of  Congress,  do 
not  treat  them  as  invalid,  94,  95  ;  not  sanctioned  by  other 
State  legislatures,  their  purport  escaped  notice,  101  ; 
State  let  them  drop,  101,  102  ;  no  assertion  of  their  doc- 
trine until  1830,  133 


INDEX.  167 

L 

Lansing,  John,  with  Yates  a  delegate  from  New  York,  left 
the  convention  July  3d  when  a  National  Government  was 
agreed  on,  66  ;  his  motion  for  conditional  acceptance  of 
the  Constitution  rejected  by  New  York  convention,  72,  73 

Lee,  Robert  E.,  opinion  that  secession  was  revolution,  that  the 
United  States  Government  was  national  and  perpetual,  4, 
156 

Lieber,  Francis,  on  Webster's  oratory,  13 

Lincoln,  Abraham,  acts  in  Merriam's  case,  declaration  of  free- 
dom to  slaves,  46,  159 

Livingston,  Edward,  Jackson's  proclamation,  142,  143 

Lodge,  Henry  Cabot,  on  secession  and  Webster's  argument, 
5,  6  ;  on  Josiah  Quincy  and  Hartford  convention,  132 


M 


Madison,  James,  protective  duties,  26  ;  as  to  compact,  29 ; 
suggestions  as  to  convention  to  form  government,  51 ; 
letter  to  Hamilton  on  adoption  of  Constitution,  72 ; 
wrongly  accused  of  support  of  nullification,  96  ;  author  of 
Virginia  resolutions  of  1798  and  explanation  of  1799,  102  ; 
a  strict  constructionist,  82  ;  signed  re-charter  of  the  United 
States  Bank,  133  ;  see  Virginia  resolutions 

Marshall,  John,  Chief-Justice,  declaration  concerning  suprem- 
acy of  United  States,  142  ;  that  State  courts  had  invari- 
ably yielded,  1 50 

Martin,  Luther,  definition  of  extent  of  judicial  power  of 
United  States,  20  ;  objection  to  punishing  treason,  43 

Mason,  George,  insisted  on  National  Government,  57  ;  refused 
to  sign  Constitution,  reasons,  69 

Massachusetts,  acceptance  of  Constitution  and  use  of  word 
compact,  75  ;  submission  to  embargo,  30 

Military  academies  in  Southern  States,  158 

Missouri  Compromise,  135,  136 

Morley,  John,  on  British  opinion,  2,  3 

Morris,  Gouverneur,  report  of  draft  of  Constitution,  64  ;  on 
the  importance  of  the  Mississippi,  123 


1 68  INDEX. 

N 

New  England,  discontent  with  embargo  and  submission,  130 
New  York,  consideration  of  the  acceptance  of  the  Constitution, 
72,   73  ;    unanimous  assertion  of  its  convention  that  the 
adoption  was  for  perpetuity,  77,  78 

Nullification,  claim  that  validity  of  laws  of  general  government 
are  at  the  caprice  of  each  State,  25,  26  ;  no  suggestion  of 
such  right  in  conventions,  75  ;  no  claim  of  such  right 
save  in  Kentucky  resolutions  until  1830,  133  ;  so  stated 
by  Jackson,  Marshall,  and  the  nullifiers  of  South  Caro- 
lina, 141,  142 


Pennsylvania,  resistance  to  excise  law,  84,  85  ;  resistance  to 
United  States  in  Gideon  Olmstead  case,  118-122  ;  propo- 
sition to  Virginia  for  amendment  of  Constitution  as  to 
questions  between  States  and  United  States,  122,  123 

Pinckney,  Charles  C.,  declaration  in  convention  of  South 
Carolina  that  the  States  never  had  sovereignty,  74  ;  satis- 
faction with  Constitution,  67 

Pinckney,  Charles,  declaration  as  to -nationality  of  the  Consti- 
tution, 74 


Quincy,  Josiah,  his  declaration  a  threat  of  rebellion,  not  a 
claim  of  right  of  secession,  124,  125  ;  non-concurrence  of 
Massachusetts,  124,  130,  131  ;  not  made  delegate  to  Hart- 
ford convention,  132 


R 


Randolph,  Edmund,  introduced  national  resolutions  in  con- 
vention, 51  ;  did  not  sign  Constitution,  69  ;  supported  it 
in  Virginia  convention,  71 

Resolutions  of  State  legislatures  are  mere  opinions,  89  ;  even 
when  declaring  laws  of  United  States  null  and  void,  148 


INDEX.  169 

S 

Secession,  general  belief  in  right  of,  by  Southern  and  English 
writers,  1-4  ;  belief  of  some  Northern  writers,  5,6;  im- 
practicability of  claim,  25  ;  declaration  of  perpetuity  in 
preamble  of  Constitution,  33,  34  ;  historically  no  claim  of 
such  right  until  1830,  142 

Senate,  equality  of  States  in,  merely  a  compromise  of  repre- 
sentation, 60,  6 1 

Slavery  abolished  by  power  given  in  Constitution,  46, 
158 

South  Carolina,  declaration  concerning  tariff,  warlike  prepara- 
tions, 138  ;  original  adoption  of  the  Constitution,  73,  74  ; 
nationality  asserted  in  convention,  74  ;  only  State  assert- 
ing right  of  nullification  in  1833,  146  ;  resolutions  of  other 
Southern  States  opposing  her  opinions,  146-148 ;  col- 
lection of  duties  after  State  ordinance,  145,  146,  and 
note;  submission  to  judgment  overruling  taxation  of 
United  States  Bank,  150;  first  State  to  secede,  155; 
statue  of  Calhoun  and  monument  at  Spartanburg,  161, 
162 

Southern  States,  satisfaction  with  Constitution  at  first,  67  ; 
opposition  to  secession  in  1833,  146  ;  resolves  of  legisla- 
tures, 146-148  ;  change  of  views,  154 ;  control  of  the 
government  before  the  Civil  War,  153  ;  laws  of  United 
States  and  decision  of  Supreme  Court  establishing  right  to 
introduce  slaves  into  territories,  154;  preparations  for 
secession,  155;  confidence  of  success,  157 

State  governments,  powers  derived  from  Constitutions,  27  ; 
subordinate  and  local,  39,  40  ;  limited  under  the  Consti- 
tution of  United  States,  46  ;  original  sovereignty  ques- 
tioned, 79-81  ;  admitted  by  Webster,  80  ;  denied  in 
convention  of  South  Carolina,  74 ;  resolutions  of  legisla- 
tures mere  opinions,  148 

Stephens,  Alexander  H.,  on  secession,  i,  2 

Story,  Joseph,  Judge  of  Supreme  Court,  doctrine  of  supremacy 
of  United  States,  tenacity  in  his  belief,  152,  153 

Supreme  Court  of  United  States,  its  powers  principally  those 
of  restraint,  152  ;  see  Judiciary  of  the  United  States 


I/O  INDEX. 


Taney,  Roger  B.,  Chief-Justice,  maintained  authority  of 
United  States,  151  and  note 

Tariffs,  for  revenue  and  protection,  second  act,  first  Congress, 
26  ;  no  question  of  power  then,  81,  82 

Taylor,  John,  views  concerning  the  government,  114,  115 

Treason,  crime  according  to  the  Constitution,  41  ;  right  of 
government  to  punish,  implies  its  citizens  owe  allegiance, 
41  ;  a  confederacy  does  not  punish  it,  41  ;  the  old  con- 
federacy, 41  ;  consideration  of  the  clauses  of  punishment 
of,  41,  42 

U 

United  States  Government,  limited  to  powers  granted  by  the 
Constitution,  27;  was  a  nation  or  a  confederacy  made? 
28,  29  ;  the  compact  was  for  a  nation,  30 ;  perpetuity 
declared  in  preamble,  34  ;  its  supremacy  expressly  de- 
clared and  nature  of  powers  granted,  35,  36  ;  great  powers 
over  States,  38,  44  ;  can  be  extended  by  amendment,  45, 
46  ;  see  Judiciary  of  the  United  States 


Virginia,  acceptance  of  Constitution,  76  ;  its  powers  derived 
from  the  people  of  the  United  States,  76  ;  approval  by 
legislature  of  the  supremacy  of  the  United  States  judiciary, 
122,  123  ;  did  not  secede,  reasons  for  joining  the  South, 
156 

Virginia  resolutions,  statement  of,  98,  99  ;  did  not  declare  a 
State  could  interpose,  99  ;  a  denunciation  of  assumption 
of  undelegated  powers  by  United  States,  99  ;  opposed  by 
other  States,  100,  101  ;  explanation  of  their  meaning, 
102-111  ;  State  means  people  of  the  State,  103,  104;  of 
rights  of  States  in  case  of  usurpations,  105  ;  right  to  re- 
dress usurpations,  105,  106  ;  admission  of  authority  of 
judiciary,  106  ;  allegation  that  assumption  of  undelegated 
powers  would  end  in  monarchy,  108  ;  attack  on  Alien 
and  Sedition  laws,  109,  HI,  112  ;  assertion  that  resolu- 
tions are  mere  opinions,  109,  no  ;  patriotism  of  the 
State,  in  ;  remedial  methods  suggested,  113 


INDEX.  I/I 

W 

Walker,  Robert  J.,  as  to  Jefferson's  views  of  nullification, 
125  ;  successful  canvass  of  Mississippi,  147 

Washington,  George,  services  in  convention,  67,  68  ;  suppres- 
sion of  insurrection  by  military  force,  84  ;  letter  on  dis- 
banding the  army,  86  ;  letter  submitting  Constitution  to 
each  State  as  to  consolidation  of  Union,  86  ;  farewell 
address,  on  unity  of  government,  86  ;  action  on  the  Vir- 
ginia resolutions,  113 

Webster,  Daniel,  personal  appearance,  i  ;  reply  to  Hayne's 
attack  on  the  East,  n,  12  ;  the  coalition  and  Banquo's 
ghost,  10,  ii  ;  eulogium  of  South  Carolina,  12  ;  declara- 
tion that  the  government  was  made  by  the  people,  for  the 
people,  16  ;  supremacy  and  nationality  of  government, 

1 6-2 1 

Wilson,  James,  services  in  the  general  and  State  conventions, 

70 
VVolseley,  Lord,  as  to  Lee  and  secession,  4 


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